386

Abandoned Property (Buildings in the Urban Areas) Rules, 1972

Citation: 8 BLC 1

Case Year: 1972

Subject: Abandoned Property (Buildings in the Urban Areas)

Delivery Date: 2018-04-26

Abandoned Property (Buildings in the Urban Areas) Rules, 1972

 

Rule 10(1)

 

From the parent provisions of Articles 4 and 5 of PO No. 16 of 1972 it is clear that the Government are fully authorised to transfer any abandoned property by way of sale and as such the provision in clause (c) of Rule 10(1) of the Abandoned Property (Buildings in the Urban Areas) Rules, 1972 does not divest the Government of its power to deal with the property in question in the manner as has been done by the memo dated 10-4-85.

 

Asaf Khan and others vs Court -of Settlement, First Court and others 8 BLC 1.

387

Abandoned Property (Supplementary Provisions) Ordinance, 1985

Citation: 6 BLC 62, 8 BLC (AD) 179, 10 BLC 476, 10 BLC 225, 6 BLC (AD) 39, 8 BLC (AD), 179, 10 BLC 252, 8 BLC (AD) 27, 9 BLC (AD) 41, 9 BLC 195, 8 BLC 158, 6 BLC (AD) 90, 8 BLC (AD) 179, 7 BLC 315, 8 BLC 1, 10 BLC 476, 6 BLC (AD) 85

Case Year: 1985

Subject: Abandoned Property (Supplementary Provisions)

Delivery Date: 2018-04-26

Abandoned Property (Supplementary Provisions) Ordinance, 1985

[LIV of 1985]

 

Sections 2(6) and 5(1):

 

While dis­posing of the petition of the petitioner the Court of Settlement compared the signature of the vendor appearing in the original lease deed with the signature of agreement of sale as if deciding the title. Government appearing before the Court of Settlement could not produce any material to show that the original allottee being a non local did anything prejudicial in the war of liberation of Bangladesh and similarly there is no material that the possession of the property was taken by the Government under section 5(1) of the Ordinance and hence, the judgment suffers from non-application of judicial mind.

 

Yakub Mia (Md) vs Chairman First Settlement Court and others 6 BLC 62.

 

Section 4:

 

Although the Government are in possession of the abandoned property through their allottees -the building should have been published in the 'Ka' list instead of 'Kha' list but when it is found that the- property answers the description of abandoned property then it is immaterial in which list it is published arid on that count enlistment of the property as an abandoned property cannot be knocked down.

 

Section 4:

 

Since under the provision of the President's Order 16 of 1972 Rule has already been framed and thereunder 'Form' for service of notice for taking over different classes of property has also been provided and that as section 4 of the Ordinance provides for service of notice in the 'Form' prescribed by the Rule already framed, .it cannot be said that no guideline has been given for serving the notice either for taking over possession or for surrendering possession or that the authority that has been given in section 4 of the Ordinance for serving notice for the purpose as specified therein is not a specified one.  

 

Dr Fakir Anjuman Ara vs Bangladesh and others 8 BLC (AD) 179.

 

Section 4:

 

There is no materials on record to show that the respondent government took over possession of the said house as an abandoned property for the reason that it was left uncared for by its owner nor any notice as required under Article 7 of President Order 16 of 1972 was issued on any occupant of the house before the possession of the said house was taken over as an 'abandoned property. In. that view of the matter, subsequent inclusion of 5 the said house in the "Ka" list as abandoned property under Ordinance No. 54 of 1985 without issuing of any notice as contemplated under section 4 of the said Ordinance is illegal and without jurisdiction.

 

Shahida Begum vs Government of Bangladesh represented by the Secretary, Ministry of Housing and Works and others 10 BLC 476.

 

Sections 4 and 5:

 

In spite of papers relating to ownership of the building and injunction order against government was in force the government, on 23-9-1986 declared this property as. abandoned property as;per provision of Ordinance LIV of 1985. In such view of the matter, it is held that the petitioner's vendor Hazera Khatopn was in Bangladesh and she never left Bangladesh and hence the gazette notification enlisting the case property in "Kha" list, as abandoned property is without jurisdiction.

 

 Abdur Rashid (Md) vs Court of. Settlement and others 10 BLC 225.

 

Sections 4(b) and 7(1):

 

Since the property has recently been contemplated to be treated as an abandoned property and the remedies under PO 16 of 1972 are all time-barred, the, question of delay does not arise. It is not the duty of the Appellate Division to reassess the evidence to arrive at a fresh finding of fact regarding reality of "the papers and never acted upon as has been ; consistently held By the Appellate Division.

 

Government of Bangladesh & ors vs Abul Forhat Chowdhury 6 BLC (AD) 39.

 

 

Section 4(b)(i)(ii):

 

Provision of section 4(b)(i): of the Ordinance relates to the class of building in1 respect whereof notice within the time specified in the said provision has already been issued and the provision of section 4(b)(ii) of the Ordinance relates, to an abandoned property in respect whereof Government filed suit after the date that was specified in section 4(b)(i) of the Ordinance and as the provision of section 4(b)(i) and 4(b)(ii) relate to two distinctly situated classes of abandoned building it cannot be said that the provision of section 4(b) (ii) is discriminatory being viola tive of Article 27 of the Constitution.

 

 

Dr Fakir Anjuman Ara vs, Bangladesh and others 8 BLC (AD), 179.

 

 

Sections 4(6) and 5(1) (a):

 

The absence of its owner from the house or his staying away from Bangladesh after 28th February 1972 was prejudicial to the interest of Bangladesh. The respondent Government is, required to enlist any . abandoned building in 'Ka' list and publish the same in Official Gazette after taking over possession of same as abandoned-building by, issuing notice on the occupant of the same as required under Article 7 of PO 16 of 1972 as well as under sections 4(b) and 5(l)(a) of Ordinance LIV of 1985. This mandatory requirement was not satisfied before enlisting the building in question in 'Ka' list, the said enlistment is therefore bad in law and liable to be set side.

 

Afsamddin Mirdha and others vs Bangladesh and others 10 BLC 252.

 

Section 5:

 

Once a particular property is abandoned property then listing thereupon either inthe 'Ka' list or in the 'Kha' list as provides in section 5(1) of the Ordinance is not of vital importance or, in other words, is not material. Since the property has been listed under section 5(1) of the Ordinance as abandoned property and the said list has been published in the Official Gazette, the respondent No. 1 was required to dislodge statutory presumption as under section 5(2) of the Ordinance that the property in question was not an abandoned property and that the same has been wrongly listed as abandoned property which the respondent No.l totally failed to rebut such presumption.

 

Government of Bangladesh vs KM Zaker Hossain and others 8 BLC (AD) 27.

 

Section 5:

 

The High Court Division rightly considered the question of nationality of Moslemuddin as being the national of Bangladesh on the basis of a memo issued by the Ministry of Home Affairs and he died in Bangladesh and the. record shows that the writ petitioners were in possession of the case property but it was listed in 'Ka' list, there is no illegality in' the judgment of the High Court Division.

 

 

People's Republic of Bangladesh'': vs " Niaz' Ahamed and others 9 BLC (AD) 41.

 

 

Section 5(l)(a)(2):

 

 

If possession is not taken by the Government the property cannot be included in the "Ka" list. While going through the relevant file of the respondent, as has been produced by the learned Assistant Attorney-General, surprisingly it came to the notice of the Court that there was no notice, papers, records or documents whatsoever in the file relating to taking over and maintaining possession of the building in question. Hence it is held that the respondent has not taken over possession of the building in question and the enlistment of the building in the "Ka" list of Abandoned Building is illegal and without lawful authority.

 

 

Zahir Miah (Md) vs Government of the People's Republic of Bangladesh 9 BLC 195.

 

Sections 5(l)(b):

 

It appears that the, Abandoned Property Authority did neither declare the property as abandoned property before publication of ,the impugned notification nor did they issue any notice under Article 7 of President's Order No. 16 of 1972 and under section 5(l)(b) of the Ordinance No. LIV of 1985 and the authority did not require its possession till date where the petitioners has been possessing the building in question on the basis of a registered sale deed of 1992 and whether such sale deed is forged or created by false personation cannot be decided in writ jurisdiction, Hence, the inclusion of the house in question has been made without lawful authority and is of no legal effect.

 

Ali Hossain and another vs Ministry of Public Works 8 BLC 158.

 

Sections 5(2), 6(b) and 7:

 

The original suit itself became not maintainable because the Ordinance provided that enlistment of the building was conclusive evidence of its being an abandoned property. The suit was thus rightly dismissed.

 

Siruj-ud Dowla vs Government of the People's Republic of Bangladesh & others 6 BLC (AD) 90.

 

Sections 5(2) & 7

 

In view of the provisions of sections 5(2) and 7 of the Ordinance the persons whose buildings have been listed in the list of abandoned buildings published in the Official Gazette have all been equally burdened with the special type of onus to establish the buildings are not abandoned buildings. All the persons whose buildings have been listed as abandoned buildings in the list published in the Official Gazette being placed in the similar and equal situation it cannot be said that persons of the same group or position in similar situation have been discriminated against by the provision of section 5(2) of the Ordinance.

 

Dr Fakir Anjuman Am vs Bangladesh and others 8 BLC (AD) 179.

 

Section 6:

 

It appears from the decree of the suit that the suit was filed on 2-6-86 and the building was published in the gazette notification as an abandoned property on 28-4-1986 when section 6 of the Ordinance prohibits of filing any suit after gazette notification and hence the suit filed by the petitioner was barred under section 6 of the Ordinance. The High Court Division having gone through the relevant Annexures has come to a finding that the Court of Settlement was quite justified in finding that the Urdu signature of the original owner appearing in the original lease deed and the Urdu signature of the owner appearing in the deed of agreement did not tally at all and hence the judgment of the Court of Settlement warrants no interference.

 

Masihur Rahman vs Chairman, First Settlement Court & ors 7 BLC 315.

 

Section 7:

 

It appears from the affidavit-in-opposition filed by the Government in earlier writ petition No. 57 of 1985 that the Government admitted the release one-fourth share in favour of Khawja Golam Hossain, vendor of the petitioners, only three-fourth share of the property was abandoned. But after release of the one-fourth share of Khawja Golam Hossain from the list of abandoned properties and decision of the Government to sell the remaining three-fourth share,to the petitioners, treating the entire property including one-fourth share of Khawja Golam Hossain as abandoned property is without any basis. It appears from the two letters relating to service of Khawja Golam Hossain that Khawja Golam Hossain was in Bangladesh at least upto 1981 which was not considered by the Court of Settlement. Court of Settlement failed to appreciate the facts involving the jurisdiction and authority of the Government in enlisting the one-fourth share of the disputed property in the abandoned list and fell in an error which is an illegality in the exercise of jurisdiction and it arrived at a wrong conclusion causing prejudice to the petitioners which made the. impugned judgment liable to be declared void with regard to one-fourth share of Khawja Golam Hossain.

 

Asaf Khan & ors vs Court of Settlement, First Court 8 BLC 1.

 

Section 7:

 

The petitioner came to know about the inclusion of the said house in "Ka" list quite late in the day and accordingly her application under section 7 of the said Ordinance was not entertained by the Court of Settlement. Such explanation is quite satisfactory. There is therefore no bar for the petitioner to invoke the writ jurisdiction 'under Article 102 of the Constitution for necessary relief.

 

Shahida Begum vs Government of Bangladesh represented by the Secretary, Ministry of Housing and Works 10 BLC 476.

 

Section 10(2):

 

Court of Settlement-Jurisdiction—It appears that the learned Judges of the High Court Division based their decision only on the fact that the deed of gift is a registered one overlooking the fact that there was no indication of legal acceptance of the gift and that the same has been acted upon as required under law as production of the original deed of gift by the donee and other documents such as mutation paper, municipal record would have indicated that the same has been acted upon and in the absence of such documents it cannot be said that the deed of gift has been acted upon and hence the High Court Division wrongly made the Rule absolute.

 

Bangladesh, represented by the Secretary, Ministry of Housing and Public Works & another vs Shirely Anm/ Ansarr 6 BLC (AD) 85.

388

Acquisition & Requisition of Immovable Property Ordinance 1982

Citation: 7 BLC(AD) 17, 10 BLC 580,

Case Year: 1982

Subject: Acquisition & Requisition of Immovable Property

Delivery Date: 2018-04-26

Acquisition & Requisition of Immovable Property Ordinance

 

 [II of 1982]

 

Sections 3 and 6:

 

A proceeding was initiated for acquisition of some land for establishing a Co-operative Institute and notices under sections 3 and 6 were served which was challenged in writ jurisdiction on the ground that the land was unspecified and indefinite and the High Court Division rightly rejected the writ petition summarily as no such question was raised before the acquisition authority.

 

Mizamtr Rahman (Md) vs DC Mymcnsingh and others 7 BLC(AD) 17.

 

Section 17(2):

 

Admittedly, suit property was not used nor utilised by requiring body Rajuk and suit property is required to be returned back on releasing it to plaintiff and on .the death of plaintiff his heirs, the opposite parties, now acquired the entitlement to have the suit property released or returned back in their favour. Since suit property is the acquired property of plaintiff, natural justice, fair play and equity demands that suit property be returned back to heirs- of plaintiff, the opposite party Nos. l(ka), and l(kha) on its release.

 

Rajdhani Llnnayan Kartripakhya (RAJUK) and others vs Md Lutfar Rahman and ors 10 BLC 580.

389

Ad-hoc Appointees (Counting and Determination of Seniority) Rules, 1990

Citation: 9 BLC (AD) 134, 7 BLC 527.

Case Year: 1990

Subject: Ad-hoc Appointees (Counting and Determination of Seniority)

Delivery Date: 2018-04-30

Ad-hoc Appointees

(Counting and Determination of Seniority) Rules, 1990

 

Rule 4(2)(gha)

 

It is apparent that an ad-hoc appointee must not only appear at the'first available examination/interview but also get the recommendation at the first chance, which is the sound interpretation of the words cÖ_gev‡i Dnvi mycvwik jvf cÖ_g evi e¨_© n‡q‡Qb Ggb Kg©KZ©v| Otherwise, as per previous interpretations of Rules of 1990 there would not be any end to appearances of the ad-hoc appointees who would appear before, the PSC at their sweet will and would get the seniority from the date of their ad-hoc appointments upsetting the seniority list all the time. The fundamental rights of writ petitioners, guaranteed by the Constitution under Articles 27 and 29 have not been infringed or violated by the impugned decisions. There was no violation of fundamental right as alleged and the High Court Division acted illegally in declaring the impugned order dated 27-9-1998 and the impugned decisions as taken in the meeting of the standing Committee containing the minutes and of the gradation list published in Bangladesh Gazette to be unconstitutional or void or without any lawful authority.

 

Government of Bangladesh and others vs Md Abdul Halim Miah and others 9 BLC (AD) 134.

 

Rules 4(2)(Gha) and 7

 

The petition­ers have vested right to their seniority from the date of their appointment on Ad-hoc basis and on the basis of regularisation of their service by the Public Service Commission and the gradation list has already been acted upon and hence the writ petition is maintainable and the impugned Memo has been issued without lawful authority and is of no legal effect and the impugned Memo is declared ultra vires the fundamental right guaranteed by the constitution.

 

Shamsuddin Miah (Md) and others vs Ministry of Communication, represented by the Secretary, Roads and Highways, Bangladesh Secretariat 7 BLC 527.

390

Administrative Tribunal Act 1981

Citation: 6 BLC (AD) 94, 7 BLC 44, 9 BLC 342, 7 BLC 120, 10 BLC (AD) 193, 8 BLC (AD) 80

Case Year: 1981

Subject: Administrative Tribunal

Delivery Date: 2018-04-30

Administrative Tribunal Act 1981

[VII of 1981]

 

Section 4

 

Considering the legal position the Administrative:Tribunal found that the case was filed well within time. The Administrative Appellate Tribunal also came to the finding that the respondent had option to move the Director-General under Rule 1725 of the Railway Establishment Code which has been accordingly done and the case has been filed within six months from the order passed by the Director-General. No illegality and wrong has been committed by the Tribunals below.

 

Director-General/ Secretary, Railway Division and others vs Md Elahi Baksha 6 BLC (AD) 94.

 

Section 4

 

If the eligible person is not considered for promotion, in such case the aggrieved person can enforce his right by invoking constitutional jurisdiction of the High Court Division as such right cannot be enforced by invoking the jurisdiction of the Administrative Tribunal.

 

M'Abu Raihan vs Secretary, Ministry of Science and Technology, Bangladesh Secretariat and others 7 BLC 44.

 

Section 4

 

Administrative Tribunal is the proper forum as it is the proper fact finding body to go into facts as alleged by the petitioners and grant necessary relief if they were so entitled as the petitioners have not challenged the vires of the law on the basis of which Roads and Railway Division has been created and the posts of the former Railway Division have been abolished by the respondents. Except the assertion by the learned Advocate of malafide action there is no facts averred in all the five writ petitions constituting malafide action leading to passing of the impugned orders.

 

Karimun Nessa and others vs Government of Bangladesh and others 9 BLC 342.

 

Section 4(2)

 

Even if the gradation list has the force of law concerning the terms and conditions of the service of the petitioners it would not enable the petitioners to seek remedy under the writ jurisdiction because the Constitution requires them to take recourse to specific remedy as provided in Article 117 of the Constitution before the Administrative Tribunal.

 

Majibur Rahman (Md) and ors vs 'Secretary of Ministry of Social Welfare Government of the People's Republic of Bangladesh and others 7 BLC 120.

 

Section 6(1)—

 

It is seen from the provision of section 6(1) of the Administrative Tribunal Act that an appeal lies from an order of the Administrative Tribunal. In the instant case the Administrative Tribunal refused the prayer for ad-interim order restraining the authority from granting promotion to the respondents. So the respondent Nos. 1-11 herein if were aggrieved by the order so passed by the Administrative Tribunal they were required as per provision of section 6(1) of the Administrative Tribunal Act to file appeal, if any, they would have thought fit. But instead of doing that they were not well advised to file the writ petition seeking the relief identical to the relief sought in the Administrative Tribunal case with the sole object of having an ad-interim order restraining the authority from taking steps for the promotion of the Assistant Superintendent of Police to the post of Additional Superintendent of Police.

 

Khalilur Rahman, ASP SB, Dhaka vs Md Kamrul Ahsan 10 BLC (AD) 193.

 

Section 6A—

 

In the instant case PSC recommended for regularisation of the opposite parties No. 3-86 on 28-1-1998 and thereupon the said opposite parties became the members of the Bangladesh Civil Service (Enforcement: Police Cadre) and that being so in law they can only claim seniority in the Cadre Service on and from 28-1-1998 and no other date.

 

Khalilur Rahman (Md) PPM and others vs Md Kamrul Ahsan and others 8 BLC (AD) 80.

391

ADMIRALTY COURT ACT, 1861

Citation: 2 BLD (AD) 69, 3 BLD (HCD) 3, 3 BLD (HCD) 178, 6 BLD (AD) 107, 6 BLD (HD) 117, 9 BLD (HCD) 240, 1O BLD(HCD) 105, 10 BLD (HCD) 347, 12 BLD (HD) 95, 12 BLD (HCD) 539, 4 BLD (AD) 237, 4 BLD (AD) 222.

Case Year: 1861

Subject: ADMIRALTY COURT

Delivery Date: 1970-01-01

 

 

ADMIRALTY COURT ACT, 1861

 

Section—6

Jurisdiction of Admiralty Court—Carriage of goods by sea—The section gives the Court jurisdiction only when there is damage done to goods on account of breach of contract of carriage or due to negligence, misconduct or breach of duty, independently of the contract which resulted in damage to the goods to be carried by the ship.

Maritime Lien—Maritime lien is different from maritime claim—All maritime liens are maritime claims, but all maritime claims are not maritime liens—Only certain types of maritime claims give rise to maritime liens— Panics by agreement cannot confer lien status on a claim which is not by nature a 1ien—The only lien recognised today are those created b statutes and those historically recognised in maritime law—Section 6 of the Admiralty Court Act, 1861 does not confer a maritime hen—Admiralty Court Act, 1861, S.6.

Al-Sayer Navigation Co. Vs. Delta International Traders Ltd. and others, 2 BLD (AD) 69.

Ref: The St. Cloud, 1863 L.R. 2A & E 269; The Napoter, L.R.Z.A & E 375; North Port Vs. Owners of Henrich Biorn, (1886) 2 App CAS 270; GIovanni Dapueto Vs. James Wyllie, 1874 L.R. 5 P.C. 482.

 

Admiralty Jurisdiction

Suit for compensation for non-delivery of goods carried in a ship is maintainable before the Admiralty Court —Admiralty Court Act, 1861, S. 6.

Albert David (Bangladesh) Ltd. Vs. M/s. Brestern Shipping Company Ltd. and others, 3 BLD (HCD) 3.

Ref: 20 DLR (SC) 225.

 

Admiralty Jurisdiction

Damage done to the goods or any part thereof or for breach of any duty or breach of contract on the part of the owner, master or crew of the ship is within Admiralty jurisdiction—Claim of damages for detention of the vessel in the absence of any condition in the bill of lading is not entertain able by the Admiralty Court—Admiralty Court Act, 1861, S. 6.

Claim for incidental charges whether within Admiralty Jurisdiction—When incidental charges are not necessaries supplied to the ship the same cannot be claimed in the Admiralty Jurisdiction—Admiralty Court Act, 1861, S.5.

Eastern Steamship Enterprises Pvt. Ltd. Vs. Bangladesh Agricultural Research Institute; 3 BLD (HCD) 178.

Ref: 34 DLR356; 3 Asp (New Series) MLC 540; Arzepcitia 15 Asp MLC 426.

 

Admiralty Jurisdiction

Admiralty Court in Bangladesh exercising admiralty jurisdiction has no power to arrest any property or ship of the defendant other than the one which was concerned in the cause of action—Suit in rem against other ship not maintainable nor such ship can be attached under Order 38 Rule 5 of the Code of Civil Procedure—International Commerce and Trade cannot be allowed to be disturbed by the arbitrary notions of conduct of a party to a suit—Admiralty Court Act, 1861, S.6—Code of Civil Procedure (V of 1908), Or. 38, R. 5.

Kings Shipping Trading Co. Vs. M/s. L.S. Lines and others; 6 BLD (AD) 107.

 

Admiralty Jurisdiction

Exercise of such jurisdiction by the High Court Division—Supreme Court of Bangladesh, High Court Division exercises Admiralty jurisdiction under Admiralty Court Act, I 861, Colonial Court of Admiralty Act 1890 and Colonial Courts of Admiralty Act (India) 1891—This court exercises the same jurisdiction as the High Court of Admiralty of England exercises under Admiralty Court Act 1861—Jurisdiction of Admiralty Court in England was enlarged by Administration of Justice Act 1956 and under section 3(4) of the Act, the Court of Admiralty of England can exercise admiralty jurisdiction in an action in rem by arresting any vessel or property of the defendant whether or not that was concerned in the cause of action—But a Court of Admiralty in Bangladesh cannot by virtue of section 3(4) of the Administration of Justice Act, 1956 of England in an action in rem or in rem or in personem arrest any vessel or property not concerned in the cause of action on the basis of the aforesaid English enactment.— Admiralty Court Act, 1861, S.6— Administration of Justice Act, 1956, S.3(4)— Colonial Courts of Admiralty Act. 1890, S. (2)2.

 

Arrest of ship in exercise of Admiralty jurisdiction

Whether Admiralty Court in Bangladesh can arrest a sister ship of the same owner in a suit though it was not concerned with the cause of action—Whether remedy in rem can be exercised against the ship which is unconnected with the cause of action—Admiralty Court in Bangladesh has been exercising the same jurisdiction as was conferred upon the High Court of Admiralty in England under the provision of Colonial Court of Admiralty Act 1 890 and Colonial Courts of Admiralty (India) Act 1891—The High Court Division of the Supreme Court of Bangladesh never exercised Admiralty jurisdiction on the basis of practices of the English Court of Admiralty— The principles of Administration of Justice Act. 1956 extending Admiralty jurisdiction in England cannot be followed in Bangladesh as the said Act is not applicable in Bangladesh— This Court exercising Admiralty jurisdiction has no power to arrest any property or ship of the defendant other than the one which was concerned in the cause of action—The suit in rem is not maintainable but in personem is maintainable.

 

Attachment before judgment

Whether Admiralty Court can arrest a ship before judgment in exercise of admiralty jurisdiction in a suit in personem—High Court Division in exercising Admiralty jurisdiction is regulated by Admiralty the Rules— Admiralty Rules having specially provided arrest of a ship in an action in rem the procedure of attachment before judgment would not be available to the Admiralty Court in an action in personem—Code of Civil Procedure (V of 1908) Or. 38, R 5—Admiralty Rules, 1932 r-4,

Kings Shipping Trading Co. Vs. MIs. L.S. Lines and others; 6 BLD (HD) 117.

Ref. Beldis’ case 18 Aspirall’s Maritime Law Case 598; Henrich Biorn’s Case (1885) 5 Aspirall’s Maritime Law Cases 391; Al— Sayar Navigation Co. 34 DLR(AD) 110 (114) distinguished; 20DLR25; 2 All E.R. 274(277).

 

Admiralty jurisdiction

Question of maintainability of a suit for compensation for loss of money suffered due to declaration of general average by the ship owner—From the pleading it seems that the claim for damage is not a claim for damage of the goods, rather the claim rests on the contribution to be made by the petitioner towards the general average loss resulting from the damage suffered by the ship itself—There being no allegation as to damage of goods, the damage due to “sand gaining access into stem tube” for which the ship lost propelling power cannot be equated with the damage to the goods due to breach of contract, negligence or misconduct of the ship owner or the crews—In this view the admiralty jurisdiction of this Court cannot exercised in deciding the present suit—Admiralty Court Act, 1861, S.6.

Trading Corporation of Bangladesh Vs. M. V. Corina and others; 9 BLD (HCD) 240.

Ref: 34 DLR (AD) 110; 38 DLR 30; 34 DLR356.

 

Admiralty Jurisdiction

Application for return of plaint claiming decree on account of damage to insured yese1—Plea of absence of admiralty jurisdiction when not tenable—After the creation of Bangladesh as an independent state the High Court Division of the Supreme Court was dedared to be the Court of Admiralty for purposes of admiralty and maritime nature—The jurisdiction of the High Court Division in matters which concern marine insurance arising out of contracts and claims of marine mortgage is covered by the admiralty jurisdiction—Admiralty Courts Act, 1861, Ss. 6,7 and 11.

Bengal Liner Ltd. Vs. Sadharan Bima Corporation & anr.; 1O BLD(HCD) 105

 

Section—6

Applicability of—Section 7 of the Act is attracted only when damage is caused to the goods on board due to negligence, misconduct :r breach of contract or breach of duty in relation to the goods.

 

Section—6

Maintainabi1ity of Admiralty Suit

Where admittedly the goods were imported to Bangladesh from abroad and the vessel in question admittedly belongs to a national of Bangladesh, considering the provisions of Section 6 and the facts of the case it is held that the present suit before the Admiralty Court is not maintainable.

In an Admiralty Suit under section 6 of the Admiralty Court Act, 1861—Whether plaintiff can be treated as a consignee— Learned Advocate for the plaintiff submitted before the Court that the plaintiff may be treated as a consignee of Performa defendant No. 3, the importer, because, the plaintiff paid compensation money to defendant no. 3 and for that money the plaintiff filed the suit.

“It is difficult’, found the Court, “to accept the above contention” “because the provisions of section 6 speak that the owner, consignee or assignee of any Bill of Lading of goods carried into Bangladesh may file a suit for damages of the goods on board the vessel against the owner of the vessel.”

And the Court held: The plaintiff is not such an assignee as contemplated in section 6 of the Act and as such the plaintiff is incompetent to invoke Admiralty Court’s jurisdiction.

 

Section—6

Locus standi

Admiralty Court Act, 1861—Where the plaintiff is neither the owner nor consignee nor assignee of any Bill of Lading of any goods carried to Bangladesh and when no damage is done to any of his goods on board by defendant—Whether he (plaintiff-insurer) has locus standi to invoke the jurisdiction of the Admiralty Court.

On perusal of section 6 of the Act it appears that the owner or consignee or assignee of the Bill of Lading of any goods carried into Bangladesh may claim for damages against the Owner, Master or Crew of the Ship if the damage to the goods done by their negligence or misconduct .or for any breach of duty or breach of contract on the part of the Owner, Master or Crew of the Ship—In the present case the plaintiff is neither the owner nor the consignee nor assignee of any Bill of Lading of the goods imported to Bangladeshi—Performa defendant no. 3 as the importer had a separate contract with the plaintiff insurer for the goods imported—The plaintiff has no locus standi to invoke the jurisdiction of this Admiralty Court under section 6 of the Admiralty Court Act, 1861.

Code of Civil Procedure (Act V of 1908)—Order 7 Rule 11 read with section l151 of C.P.C—Return of Plaint—Admiralty Court Act, 1861 Section 6—-The plaint of the admiralty suit was returned to the plaintiff on the following Grounds: .

(a)  non-applicability of section 6 of the Admiralty Court Act, 1861;

(b)  non-maintainability, and

(c)Want of locus standi of the plaintiff.

Sadharan Bima Corporation Vs. Bangladesh Shipping Corporation and others; 10 BLD (HCD) 347.

Ref: 34DLR (AD) 110; 2BLD (AD) 69; 2 BCR (AD) 228; 34 DLR (HCD) 356; 38 DLR (HCD) 30; 1872 Maritime Law Cases (Q.B) 337; 1 BLD (HCD) 105: 42DLR (HCD) 281; S34DLR (HCD) 356: 3BLD (HCD) 3.

 

Admiralty Court Act, 1861

 

A suit under the Admiralty Court Act, whether is maintainable—I1 damage is done to the goods and if compensation for that damage is prayed for and if the cause of action and the claim arise for such compensation for damage.. then such a suit under the Admiralty Court Act is maintainable, and all maritime claims and disputes can be raised before the Admiralty Court only under the provisions of the Admiralty Court Act, 186 I—The only law under which the Admiralty Suit is to be entertained by this Court is the Admiralty Court Act, 1861 and under no other Law.

Sadharan Bima Corporation Vs. M. V. BIRBA and others; 12 BLD (HD) 95.

Ref. 16DLR(SC)61; 43DLR548; 34 [)LR(HCD )356; 34DLR(AD) 110; 72C.W.N. 635; 3BLD(HCD)104; 35 DLR(AD)188.

 

Section—5

Nature and scope of Admiralty jurisdiction in Bangladesh with reference to the law in England as it stood in 1890—Section 5 of the.Admiralty Court Act, 1861 determines the claim for necessaries supplied to any foreign ship—Money claimed by plaintiff from the defendant by way of recovery of loan, whether constitutes claim for necessaries supplied to ship.

From the materials produced before the Court, it cannot be said that the plaintiffs claim has any nexus or proximity to the transaction of supply of necessaries so as to bring the case within the ambit of section 5 of the Admiralty’ Court Act, 1 861.

Brian macaster vs. M. V. Golden Gate Ex—Free Trader & ors.; 12 BLD (HCD) 539.

Ref: The Riga, L.R. 3A & E 516; The Hainrich Bjorn, 1921 L.R. 241.

 

Action for violation of Court’s order

Appellate Division passed order for keeping a vessel under attachment—Whether High Court Division competent to take action for violation of such order—After the order was passed by the Appellate Division in the Civil Miscellaneous Petition the appeal before the High Court Division was rendered in- fructuous—Impugned order which may be argued to have merit, seems to have been passed without any competence to do so—Its legality or illegality therefore loses all significance—Anxiety to do justice cannot have free play so as to enable the court to overcome the barrier of competence.

Md. Muzaffar Hossain Vs. King Fishers Industries Ltd; 4 BLD (AD) 237.

 

Admiralty Suit

Question of extending the period of limitation—-Discretion of the Court in extending the period of limitation—if the plaintiff had failed to bring the action within two years having ample opportunity Court will not extend period of limitation—It is not clear why the appellant allowed the period of limitation to run out even though the period of limitation was known to it—It appears that there was no agreement between the parties that the defendant would be bound to satisfy the claim outside the period of limitation— The appellant did not even make any application, explaining the reason for its inability to bring the action within time before the Court for granting an extension of time beyond two years—Court rightly held that the plaint was barred by time while rejecting the plaint—Maritime Convention Act, 1911, S.8.

Bangladesh Inland Water Transport Corporation vs. M/s. Seres Shipping Incorporated one World Trade Centre and others. 4 BLD (AD) 222.

Ref. 30 DLR 149—Cited.

 

392

Admiralty Court Act, 1861

Citation: 8 BLC 85, 6 BLC 45

Case Year: 1861

Subject: Admiralty Court

Delivery Date: 2018-04-30

Admiralty Court Act, 1861

 

Section 6—

 

In an Admiralty Suit the plaintiff filed an application for extension of Bank guarantee which expired on 17-12-2001 by efflux of time. It appears that it is the obligation of the defendant to take necessary steps to renew the Bank guarantee because the arrested vessel was released only on furnishing the Bank guarantee and since the Bank guarantee itself is the security instead of vessel such security must be continued and kept in force till disposal of the suit.

 

Java Vegetable Oil Ltd vs M.T Komandarm Fedko and others 8 BLC 85.

 

Section 10

 

Plaintiff as Master of the vessel was not given his monthly salary and other allowances from the date of his joining the vessel and he could not sign off nor was relieved from his service even after the expiry of his contractual period of employment and hence he is entitled to salaries and other allowances till the date of his signing off or release from the vessel for an amount of US$ 29761.84 equivalent to Bangladeshi Taka 14,49,401.61. By an amendment of plaint his claim was enhanced.

 

Plaintiff proved his case ex parte and he is entitled to recover for an amount of US$ 38,992.05 (or its equivalent amount in taka as on the date of payment) with costs against the defendant Nos. 1 and 2 with interest at the rate of 10% per annum from the date of decree till its realisation. It is an action in rem against the vessel and in personam against the other principal defendants.

 

Captain Khawja Bakhtyiar Saleem vs MV Delta Star and others 6 BLC 45.

393

Admiralty Court Act, 2000

Citation: 10 BLC 148

Case Year: 2000

Subject: Admiralty Court Act

Delivery Date: 2018-04-30

Admiralty Court Act

[XLIII of 2000]

 

Section 24

 

It is contended on behalf of the decree-holder-petitioner that the admiralty suit has been decreed long ago but yet the judgment debtors have paid but a negligible amount of the decretal amount and also they have come with the applications for permission to sell the attached and mortgaged properties of the judgment debtor to realise decretal amount though the sale of these properties would not satisfy the decree in its entirety.

 

The jurisdiction or this Court is not derived from the Letters Patent of 1862 or that of 1865, but from the Colonial Courts of Admiralty Act (India) of 1891 and the Court of Admiralty Act 1861 of England.

 

The Admiralty Court Rules was framed in 1912 which was gazetted on 12th June, 1912 and that rule is still in force in Bangladesh pursuant to the provisions of section 24 of the Admiralty Court Act, 2000. Section 24 of the present Act provides that until rules are framed under the new Act the Admiralty Rules which were in existence will be followed and admittedly no rule has yet been framed under the Admiralty Court Act, 2000. Therefore, the rules framed in 1912 under the provisions of the previous Act arc still in force and govern the procedure in the Admiralty Court.

 

Sonali Bank vs Bengal Liner Ltd 10 BLC 148.

394

Admiralty Suit

Citation: 9 BLC (AD) 19

Subject: Admiralty Suit

Delivery Date: 2018-04-30

Admiralty Suit

 

Bank guarantee furnished earlier had expiredRefusal of its extension is not legal- In all accepted norms of good conscience and fairplay the respondents were required to keep their commitment valid till disposal of the Admiralty Suit but for the lapse on the part of the respondents would in no way disentitle the appellant to seek order from the Court to compel the respondent No. 1 to keep her commitment to the Court valid till adjudication of the said suit. Accordingly, the respondent No. 1 was directed to furnish fresh Bank Guarantee in the Admiralty Suit.

 

Loyal Shipping (Pvt) Ltd and another vs MV Anangel Wisdom and others 9 BLC (AD) 19.

395

Appellate Side Rules

Citation: 6 BLC 37

Subject: Appellate Side Rules

Delivery Date: 2018-04-30

Appellate Side Rules

 

Rule 39

 

The allegation of illegal order of detention and malafide issuance of the same is deemed to have been admitted by the respondents in view of the Rule 39 of the Appellate Side Rules which makes it obligatory on the respondents to show cause and if no cause is shown, the Rule is that "the Court shall pass order that the person or persons improperly detained shall be set at liberty" as has been decided by our Appellate Division.

 

Jahangir Alam (Md) vs Bangladesh and ors 6 BLC 37.

396

Arbitration Act

Citation: 10 BLC 614, 9 BLC 636, 10 BLC 140

Subject: Arbitration Act

Delivery Date: 2018-04-30

Arbitration Act

[I of 2001]

 

Sections 3(2), 10 and 45 to 47

 

It is the consistent view of our Apex Court that section 10 of the Arbitration Act has no manner of application regarding foreign arbitral proceeding even though the foreign arbitral award can be enforced in this country pursuant to the provisions of section 3(2) read with sections 45 to 47 of the Act.

 

Uzbekistan Airways and another vs Air Spain Ltd 10 BLC 614.

 

Section 12

 

It appears from the note given by the Superintendent of the Original Side that the learned Chief Justice informed through his Lordship's secretary that by the present constitution the necessary nomination has been given under section 12 of the Act to the Company Judge to hear and dispose of an application filed under section 12 of the Act. Therefore, no further nomination by name is necessary.

 

Genesis System Ltd vs Clapp and Mayne Inc 9 BLC 636.

 

Section 12

 

If either of the parties fails to fulfil their responsibilities under the terms of the agreement, an attempt must be made to resolve the dispute by friendly discussion. In the present case, no friendly discussion took place and, as such, the vital element is missing. The alleged notice is no notice in the eye of law. Thus the second material requirement of law is also missing. The instant application is premature and incompetent as no attempt was made to hold any friendly discussion nor any notice was, in fact, served upon the opposite party in respect thereof.

 

Genesis System Ltd vs Clapp and Mayne Inc 9 BLC 636.

 

Sections 42(2) and 43

 

It appears that by the judgment and order dated 5-4-2000 passed by the Subordinate Judge, First Court in Arbitration Miscellaneous Case No. 49 of 1997 the authority of Arbitral Tribunal had been revoked on 5-4-2000. Thus the Title Suit No. 189 of 2001 which is now pending before the First Subordinate Judge, Dhaka has become infructuous. The award dated 9-5-2003 passed by the Arbitral Tribunal when the authority of the Arbitral Tribunal had been revoked long before that is, 5-4-2000, but the Arbitral Tribunal proceeded with the said arbitration case most illegally and without jurisdiction after pronouncement of the judgment of the said Arbitrations Miscellaneous case.

 

Bangladesh Oil, Gas and Mineral Corporation ("Petrobangla") vs Saipem SPA 10 BLC 140.

397

Arbitration Act, 1940

Citation: 10 BLC 230, 10 BLC 140, 9 BLC (AD) 61, 9 BLC 212, 7 BLC 158, 9 BLC 271, 7 BLC (AD) 27, 7 BLC (AD) 48, 7 BLC 308, 9 BLC 96, 10 BLC 230

Case Year: 1940

Subject: Arbitration Act

Delivery Date: 2018-04-30

Arbitration Act

[X of 1940]

 

Sections 3 and 29

 

The power of awarding interest by Arbitrator can be described in the following way: (a) Pre-reference period interest—In the absence of any law or agreement providing for payment of interest by an Arbitrator on an award made by him it willnot be proper and safe to vest in him power to award interest for the pre-reference period; for this period the Arbitrator may allow interest only if it is provided in any agreement or law.

 

Chittagong Steel Mills Ltd .and another vs MEC Dhaka and others 10 BLC 230.

 

Sections 5 and 41

 

The award dated 9-5-2003 passed by the Arbitral Tribunal when the authority of the Arbitral Tribunal had been revoked long before that is, 5^4-2000 but the Arbitral Tribunal proceeded with the said arbitration case most illegally and without jurisdiction after pronounce­ment of the judgment of the said Arbitrations Miscellaneous case. The so-called award is nothing but void ab initio and, as such, non est. A non-existent award can neither be set aside nor can it be enforced. In such view of the matter the instant application is misconceived and thus incompetent in law as there is no award in the eye of law, which can be set aside.

 

Bangladesh Oil, Gas and Mineral Corporation ("Petrobangla") vs Saiperh SPA 10 BLC 140.

 

Sections 8 and 20

 

In interpreting the arbitration clause in the policy the Court has to put a reasonable construction on the terms as because the circumstance mentioned in that clause may not be the only circumstance or situation to be referred to the Arbitrator. Clause 18 of the instant Insurance Policy should include any or all differences between the parties over the respective claim of the respective parties so as to make the said clause 18 operative and meaningful under the insurance policy itself. The Courts below have rightly concurrently found the difference to be covered by clause 18 of the Insurance Policy.

 

Sadharan Bima Corporation vs Delta Jute Mills Ltd 9 BLC (AD) 61.

 

Sections 8(1) and 14When approached by a party after the contending parties failed to reach a consensus on the appointment of the sole Arbitrator the Court can appoint an Arbitrator in accordance with section 8(1) of the Arbitration Act. The clause GC(12) of the agreement provides for arbitration by a designated Engineer of Bangladesh Power Development Board. The plaintiff went to the Arbitration Court in hot haste without taking necessary steps in the matter as envisaged by clause GC(12) of the agreement. The learned Arbitration Court acted illegally in appointing Mr Justice Abdul Wadud Chawdhury as the sole Arbitrator in flagrant violation of the said clause of the agreement. Since the Arbitrator initially lacked jurisdiction to act as sole Arbitrator in the case beyond the agreed stipulation of the parties, this inherent deficiency cannot be bridged up by subsequent developments despite consistent objection of the defendant Board.

 

Bangladesh Power Development Board vs MS Builders Corporation 9 BLC 212.

 

Section 8(2)

 

In such a contested proceeding the order passed under section 8(2) of the Arbitration Act in the absence of any finding of existence of an arbitral dispute or difference within the tenor of the contract, and bereft of any reason whatsoever, cannot be sustained in law.

 

National Sports Council vs A Latif and Co 7 BLC 158.

 

Sections 14 and 17

 

Proposition of law as emerged from the cited judicial authorities is that Court cannot sit on appeal upon the conclusion of the arbitrator by re-examining and re-appreciating the evidences examined and appreciated by the arbitrator. Examination of the judgment under challenge in the appeal indicates that Court exceeded its limited jurisdiction in disposing of the application laid under section 14 read with section 17 of the Arbitration Act and virtually sat on appeal.

 

A Latif and Company Limited vs Project Director, PL-480, Title 3, LGED & another 9 BLC 271.

 

Sections 14(2), 17 and 30

 

Bestowal of award amount of Taka six crore as damage for loss of goodwill and reputation of business does neither appear to be proper nor have any legal foundation and award of Taka six crore as damage for loss of goodwill and reputation of business got no leg to stand and the award of the said amount of Taka six crore is set aside. But award of Taka 92, 55, 140. in respect of arrear contract money and, also, Taka 14,80,822.40 i.e. 16% simple interest on the said Taka 92, 55, 140 as compensatory cost transpires to be proper and legal and the award in respect of those amounts i.e. Taka 92,55,140 + 14,80,822.40 = Taka 1,07,35,962.40 is maintained. Award in respect of above stated Taka i.e. 92,55,140 and Taka 14,80,822.40 in all Taka 1,07,35,962.40 is made Rule of Court.

 

A Latif and Company Limited vs Project Director, PL-480, Title 3, LGED & another 9 BLC 271.

 

Section 20

 

Respondent having sub­mitted to jurisdiction of arbitrator by filing joint petition and accepting the order of the Court appointing Mr Asaduzzaman as the sole, arbitrator and in participating in arbitration proceeding and in not challeng­ing the authority of arbitrator to pass the award now cannot question the validity of the award. There had been waiver and acquiescence on the part of second party-respondent and the same is completely debarred from raising the question of jurisdiction for the first time in this appeal.

 

A Latifand Co. Ltd vs Project Director, PL-480, Me 3, LGED & another 9 BLC 271.

 

Sections 29, 30 and 33

 

It is not within the jurisdiction or power of Arbitrator/ Umpire, in the absence of agreement, to grant future interest on the awarded amount till realisation thereof, but the granting of interest on the awarded money or part thereof, as has been decreed, till realisation thereof, as per provision of section 29 of the Arbitration Act, 1940, within the jurisdiction of the Court when the award is brought to the Court for making it the Rule of the Court then the Court in exercise of its discretion may or may not grant interest on the award amount or part thereof as decreed till realisation thereof. The Court of Subordinate Judge did not grant any interest on the decretal amount.

 

The jurisdiction of the arbitrator/ umpire as to awarding of pendente lite interest has been set at rest by the Appellate Division in the case reported in 46 DLR (AD) 97. As such, the contention that a%varding of pendente lite interest by the umpire was illegal merits no consideration.

 

Bux Shipping Line vs Bangladesh Water Development Board and another 7 BLC (AD) 27.

 

Section 30

 

The term misconduct occurring under section 30 of the Arbitration Act no doubt includes neglect of duties and responsibilities by an Arbitrator. But in the instant case such neglect of duties and responsibilities by the Arbitrator are absent. Arbitrator gave award in favour of the appellant with regard to the rates of the works actually done and certified by the respondent. It was not at all necessary for the Arbitrator to make physical verification of the works in question. The High Court Division missed this vital aspect of the case and unconsciously thought that physical verification of the works at the site was necessary before giving the award in question and such finding is erroneous and cannot be maintained.

 

MD. Foundation Engineer Shatu Ltd vs Chief Engineer, Roads & Highways Department 7 BLC (AD) 48.

 

Section 30

 

It is settled principle of law that insufficiency of evidence or that Court would have taken a different view on the basis of evidence on record of arbitration proceeding would not warrant any interference with the arbitration award. From the materials on record and supplementary Affidavit it came to light that the appellant mobilised and stored stone, chips, sand and other construction materials and awarding of Taka 92,55,140 cannot be termed as "Misconduct" and the decision reached by Court on "Misconduct" suffers from patent illegality which cannot be sustained in law.

 

A Latif and Company Limited vs Project Director, PL-480, Title 3, LGED & another 9 BLC 271.

 

Section 30

 

The words "or otherwise invalid" as provided under section 30 of the Act is an Award made otherwise than in accordance with the authority conferred on the Arbitrators. It is an Award which is "otherwise invalid". Award made by the Arbitrators cannot be characterised to be an invalid Award. Learned Subordinate Judge, also, on a proper consideration of all materials and facts and circumstances of the case accepted the Award as a valid one and accordingly, made the Award Rule of the Court.

 

Chittagong Steel Mills Ltd and another vs MEC Dhaka 10 BLC 230.

 

Sections 30 & 33

 

TCB having not accepted the nomination of the vessel made by the plaintiff-respondent hurriedly cancelled the contract and also forfeited the performance guarantee and encashed the same which were illegal.

 

Trading Corporation of Bangladesh vs GMM Co Ltd 7 BLC 308.

 

Sections 32 and 34

 

The defendant-appellant No. 1 terminated the contract. The party who terminates the contract cannot rely on that contract containing the Arbitration clause. Section 34 of the Arbitration Act is attracted only when an agreement to refer to arbitration exists and he who wants to avail of this section must have to show that it exists. Section 59(2) of the Arbitration Act No. 1 of 2001 saves the operation of the old Act No. X of 1940. It appears that prima facie the learned Subordinate Judge, Dhaka has got the jurisdiction to entertain and try the suit on merit and so long as the suit is not thrown out as being not maintainable an application for temporary injunction can be maintained.

 

Occidental Bangladesh Ltd & another vs Maxwell Engineering Works Ltd and anr 9 BLC 96.

 

Section 33

 

The High Court Division is of this meditated view that the application in the form of written objection laid under section 33 of the Arbitration Act was neither an application nor written objection and the same was not at all entertainable. Learned Subordinate Judge adopted the view that it got the right to see whether arbitrator in giving award committed any illegality or misconduct even in the event of non-deposit of award money or non-furnishment of security for the same and Court virtually rested its view taking into account the contentions incorporated in the written objection presented under section 33 of the Act and, thus, committed a substantial error in the decision.

 

A Latif and Company Limited vs Project Director, PL-480, Title 3, LGED & mother 9 BLC 271.

 

 

Section 33

 

The second proviso to section 33 of the Act had been added by Law Reforms Ordinance, 1978 which came into force on June 1, 1979. The proviso providing deposit of Award amount or furnishment of security for same to satisfaction of Court became a pre-requisite condition if an application is presented to challenge existence or validity of the Award or for having its effect determined and in the absence of deposit of Award money or furnishment of security for same to satisfaction of Court, application or written objection contemplated under section 33 of The Act is no application or written objection in the eye of law and not at all entertainable.

 

Chittagong Steel Mills ltd and another vs MEC Dhaka and others 10 BLC 230.

398

Artha Rin Adalat Ain

Citation: 10 BLC 617, 9 BLC (AD) 256, 7 BLC 134, 10 BLC 10 BLC 229, 9 BLC 554, 9 BLC 201, 9 BLC 331

Subject: Artha Rin Adalat Ain

Delivery Date: 2018-04-30

Artha Rin Adalat Ain

[IV of 1990]

 

Sections 2(Ka) and 5

 

It appears that the suit instituted by the plaintiff organisation (Proshika), an NGO, before the Artha Rin Adalat is not maintainable and, as such, the proceeding and the impugned orders passed by the Artha Rin Adalat are without jurisdiction and without lawful authority. The proceeding before the Artha Rin Adalat in Money Suit No. 1 of 1998 is hereby struck down.

 

Khet Majur Punish Samity, Madhabpasha and others vs Proshika (Human Development Centre), and another 10 BLC 617.

 

Section 2(kha)

 

The loan as defined in section 2(kha) of the Artha Rin Ain cannot be read that in the background of particular transaction one of the parties to the transaction obtains loan for materialisation of the, transaction to his benefit or to discharge his obligation to the other party arising out of said transaction, the party as regard whom the loanee has discharged his obligation, such party would also be considered a loanee of the Bank being the beneficiary.

 

Sonali Bank vs Md Sirajul Hoque Chowdhury & others 9 BLC (AD) 256.

 

Sections 3, 5(5), 6 and 7

 

Since the High Court Division being the appellate forum against the judgment and decree passed by the Artha Rin Adalat and since the Code of Civil Procedure is applicable in disposing of the appeal and since the Artha Rin Adalat Ain, 1990 is an additional and/or supplemental law to the general principles of law, the appellate Court has jurisdiction to stay the operation of the judgment and decree passed by the Artha Rin Adalat. Unless the operation of the judgment and decree is stayed in accordance with Order XLI, rule 5 of the Code of Civil Procedure, the appeal filed by the defendant-appellant would be infructuous.

 

Wadud Optics & Co, & others vs Pubali Bank Ltd 7 BLC 134.

 

Section 4(2)

 

All the Subordinate J Judges were appointed by the President and the judge of the Artha Rin Adalat was appointed by the Government in consultation with the Supreme Court and accordingly, the judges of the Artha Rin Adalat are functioning and exercising the jurisdiction under that Ain.

 

Mofij Mia (Md) vs Government of Bangladesh 10 BLC 10 BLC 229.

 

Section 5(1) (3)

 

From the terms employed in section 5(3) of the Artha Rin Adalat Ain it manifestly indicates that District Judge can transfer only case under trial and not a case or proceeding arising out of a suit or case filed for realisation or recovery of money of any financial institution. An execution proceeding or a Miscellaneous proceeding arising out of execution proceeding cannot be suggested to be a Bicharadhin (ftFrat?!7!) case or suit. The Ain of 1990 is a special statute and right created by statute prescribes manner of enforcing it. Party can seek to enforce that right as provided in the statute itself and not in any other mode nor in any other law. The petition for transfer has been presented under section 24 of the Code and not under section 5(3). Petition under section 24 of the Code was misconceived and learned District Judge, also, failed to take into stock this legal aspect of the matter. Judgment-debtor filed Miscella­neous case under Order XXI, rule 90 of the Code for setting aside the auction sale in the Artha Rin Adalat, who passed the preliminary decree and final decree. It was the absolute jurisdiction and competency of that Adalat to adjudicate and dispose of the said Miscellaneous case and not by any other Artha Rin Adalat as mandated by section 5(1) of the Ain of 1990.

 

Standard Chartered Bank vs Farook Paints and Varnish Manufacturing Company Ltd WBLC 414.

 

Section 5(4)

 

Since there is no provision in the Artha Rin Adalat Ain contrary to the provision of Order XLVII rule 1 of the Code of Civil Procedure, an application before the Artha Rin Adalat is competent under Order XLVII, rule l(l)(b) of the Code of Civil Procedure.

 

Abdug Samad vs Sonali Bank and others 9 BLC 554.

 

Sections 6 & 7

 

Under the Ain of 1990 two remedies were available to judgment debtor plaintiff-appellant. One, a petition under Order IX, rule 13 of the Code of Civil Procedure and the other, an appeal before the High Court Division. In both deposit of half of decretal amount was a positive requirement and mandate. The plaintiff-appellants without making the remedies available to them challenged the Tightness of the judgment and decree in a suit before a court of ordinary civil jurisdiction. The suit, thus is eminently barred by law justifying rejection of plaint.

 

Delwar Hossain and others vs Janata Bank and others 8 BLC 411.

 

Sections 6(2)

 

The judgment and decree passed ex parte on 19-2-92 could not be set aside by filing a Miscellaneous Case under Order IX, rule 13,,CPC as the said provision was not available a(t the relevant time to the judgment-debtor. The amending provision of the Artha Rin Adalat providing the provision of Order IX, rule 13, CPC came into force on 17-7-92. In such facts the Miscellaneous case filed under Order IX, rule 13, CPC was not entertainable and accordingly, present appeal is not maintainable.

 

Ramizuddin vs Pubali Bank Ltd and ors 9 BLC 201.

 

Sections 21 and 22

 

Section 21 is clearly not dependent on the whims of either party- It is the satisfaction of the Court, that it is felt fit and proper to refer the matter to Settlement Conference, which will dictate the procedure to be followed. Section 21 of the said Ain is an overriding provision, to which effect is to be given subject only to the satisfaction of the learned Judge of the Artha Rin Adalat that the procedure would be fit and proper in his discretion. HMM.

 

Alam vs Government of the People's Republic of Bangladesh and other 9 BLC 331.

399

Artha Rin Adalat Ain

Citation: 10 BLC 728

Case Year: 2003

Subject: Artha Rin Adalat Ain

Delivery Date: 2018-04-30

Artha Rin Adalat Ain

[VIII of 2003]

 

Section 4(3)(5)

 

About the mode of consultation with the Supreme Court, there is nothing clearly mentioned in sub-section (5) of section 4 of the Artha Rin Adalat Ain,2003.  Since in the Notification dated 1-1-2004, there is    clear indication that consultation has taken place with the Supreme Court prior to the transfer and appointment of the named presiding Judges to the Artha Rin Adalats, the Jurisdiction of the Adalats cannot be questioned, as the suits were filed in the respective Adalats after the said notification was issued the proceeding are valid in law. Therefore, there is no legal flaw or defect in the appointment of the Judges of the Artha Rin Adalat and the proceedings of the suit are competent under the law.

 

Idris Miah (Md) vs Bangladesh and others 10 BLC 728.

400

Bangladesh Abandoned Property (Building in Urban Areas) Rules, 1972

Citation: 7 BLC (AD) 73

Case Year: 1972

Subject: Bangladesh Abandoned Property (Building in Urban Areas)

Delivery Date: 2018-04-30

Bangladesh Abandoned Property

(Building in Urban Areas) Rules, 1972

 

Rule 10(4A)

 

Subordinate legislation cannot give retrospective effect unless authorised by the parent legislation. In the instant case the new sub-rule 4A of Rule 10 of the Rules of 1972 neither says that it will have retrospective effect nor is there any authority from the patent law, that is the Bangladesh Abandoned Property (Control, Management and Disposal) Order 1972 (President's Order No. 16 of 1972) to make Rules with retrospective effect. Therefore, the auction sale having taken place before the amendment of Rule 10 by inserting sub-rule (4A) of the Rules of 1972 the sale would be governed by the law as it existed then which is sub-Rule 4 of Rule 10.

 

United Commercial Bank Ltd and anr vs Rahimafrooz Batteries Ltd and ors 7 BLC (AD) 73.

 

Rule 10(4A)

 

In the instant case, by accepting the offer of defendant No. 3 by defendant No. 1 and delivery of possession of a part of the suit holding there was a concluded contract between defendant No. 1 and defendant No. 3 and subsequent amendment of the Bangladesh Abandoned Property (Building in Urban Areas) Rules, 1972 by sub-rule (4A) could not take away the vested right or be detrimental to the right of defendant No. 3 but the Courts below committed an error of law in holding that, the auction sale was not complete and the plaintiff had pre-emptory right to make offer of the highest bid made in the auction on the strength of subsequent amendment of the Rules by inserting sub-rule (4A) in Rule 10 of the Bangladesh Abandoned Property (Building in Urban Areas) Rules, 1972.

 

United Commercial Bank Ltd and anr vs Rahimafrooz Batteries Ltd and ors 7 BLC (AD) 73.

401

Bangladesh Abandoned Property (Management, Control and Disposal) Order 1972

Citation: 6 BLC (AD) 108, 7 BLC (AD) 49, 9 BLC (AD) 235, 8 BLC 158, 10 BLC (AD) 198, 6 BLC 661, 6 BLC (AD) 111, 7 BLC (AD) 20, 10 BLC 252, 6 BLC 91, 10 BLC (AD) 198, 8 BLC 1, 8 BLC 158, 10 BLC 476, 8 BLC (AD) 27

Case Year: 1972

Subject: Bangladesh Abandoned Property (Management, Control and Disposal)

Delivery Date: 2018-04-30

Bangladesh Abandoned Property

(Management, Control and Disposal) Order 1972

(po no. 16 of 1972)

 

Article 2

 

When the heirs of original allottee were all through in this country the High Court Division has rightly found that the property has been wrongly enlisted as Abandoned Property.

 

Government of Bangladesh vs Shamsul Hoque & others 6 BLC (AD) 108.

 

Article 2

 

The house in question could not be treated as an abandoned property as the house was in possession of the petitioner who is the attorney of his son Faruk Khan who got delivery of possession in execution of a decree on 10-5-85, the Government having not treated the house as an abandoned property before that date and that as it was treated as abandoned property only in 1988 the issuance of the impugned notice declaring the building as abandoned property had no basis where the house in question had not been included in the list of abandoned buildings as has been rightly found by the High Court Division.

 

Government of Bangladesh and others vs Noar-^Mohammad Khan 7 BLC (AD) 49.

 

Article 2

 

Admittedly, the homestead of Nasima and Farhana situated at 10/CL 12-3, Mirpur Housing Estate was declared as abandoned property which has not been challenged by them even though the PWs took the stand that Nasima and Farhana never left the country and they are still in Bangladesh which supports the case of appellant that Nasima and Farhana were non-Bengalees and they left Bangladesh during the liberation war and AP Case No. 6 of 1977 was started and it very much relates to the suit property and no further evidence is needed in this regard.

 

Additional Deputy Commissioner (Rev) and others vs Farhad Begum and ors 9 BLC (AD) 235.

 

Articles 2, 3 and 7

 

It appears that the Abandoned Property Authority did neither declare the property as abandoned property before publication of the impugned notification nor did they issue any notice under Article 7 of President's Order No. 16 of 1972 and under section 5(l)(b) of the Ordinance No. LIV of 1985 and the authority did not require its possession till date where the petitioners has been possessing the building in question on the basis of a registered sale deed of 1992 and whether such sale deed is forged or created by false personation cannot be decided in writ jurisdiction. Hence, the inclusion of the house in question has been made without lawful authority and is of no legal effect.

 

Ali Hossain and another vs Ministry of Public 8 BLC 158.

 

Articles 2 and 4

 

It was not the contemplation of the law that a person who was required to go outside his country with some lawful purpose but subsequently was held up in Pakistan and prevented from coming to his homeland by circumstances beyond his control and will, would be deprived of his property because he was not physically present to occupy, control and manage the property although it was being administered and managed according to his own arrangement and will.

 

Sena Kalyan Sangstha vs Haji Sufi Fazal Ahmed 10 BLC (AD) 198.

 

Articles 2 and 6

 

The original owner Abdul Khaleque Bain being a Pakistani citizen left for his motherland during the war of liberation of Bangladesh leaving the case property abandoned. He also died in MAO Hospital, Lahore on 4-4-1990 and hence the so-called sale deeds of the suit property executed in favour of the petitioner by the original owner are null and void under Article 6 of the President's Order No. 16 of 1972.

 

Siraj-ud Doiola vs Bangladesh and ors 6 BLC 661.

 

Articles 2 and 7

 

As the writ petitioner had no means of knowing that the property was being treated as abandoned property she could not seek alternative remedy before the Court of Settlement and hence the writ petitioner is entitled to invoke the writ jurisdiction.

 

Secretary Ministry of Works, Government of Bangladesh vs Hasner Jahcm Ahad 6 BLC (AD) 111.

 

Articles 2 and 7

 

Although the writ petitioner could not seek relief before the Court of Settlement in spite of that the High Court Division .entertained the writ petition relying on the two decisions qf the High Court Division. This case was such a case where the property in question did not come within the definition of abandoned property and no notice was served under section 7 of PO No. 16 of 1972 on the occupant of the building and the petitioner had no means of knowing that the property was being treated as abandoned property and the writ petitioner and her prede­cessor, the Eastern Housing Limited had never left the country or abandoned the property ,as has been rightly found by the High Court Division.

 

Secretary Ministry of Works Government of Bangladesh vs Hasner Jahan Ahad 7 BLC (AD) 20.

 

Articles 2 and 7

 

The absence of its owner from the house or his staying away from Bangladesh after 28th February 1972 was prejudicial to the interest of Bangladesh. The respondent Government is required to enlist any abandoned building in 'Ka' list and publish the same in Official Gazette after taking over possession of same as abandoned building by issuing notice on the occupant of the same as required under Article 7 of PO 16 of 1972 as well as under sections 4(b) and 5(l)(a) of Ordinance LIV of 1985. This mandatory requirements was not satisfied before enlisting the building in question in 'Ka' list, the said enlistment is therefore bad in law and liable to be set side.

 

Afsaruddin Mirdha and others vs Bangladesh andothe 10 BLC 252.

 

Articles 2(1)

 

as the share-holders of the petitioner company left this country during the war iof liberation and that their / whereabouts were not known on the fateful date of 28-02-72 and that they were not in control, management and supervision of the case land and thereby the land in question became abandoned property by operation of law, in spite of that the petitioner company is a Bangladeshi Company.

 

 Eastern Industries (Bangladesh Ltd) vs Bangladesh & another 6 BLC 91.

 

Article 2(1)

 

The seizure of property without legislative sanction by the Govern­ment amounts to illegal grabbing. A citizen's property cannot be seized also under the colourable exercise of power conferred by the legislature as has been done in the instant case. The Government, which is duty bound to secure rule of law for all its citizens, if it is found that the property has been illegally taken over as an abandoned property and under the'law the same has not vested in the Government, it has a solemn duty to restore the property to the rightful owner, the plaintiff, forthwith. Since the property and assets of the plaintiff were never an abandoned property and have never been vested in the Government under the law, there was no valid or lawful transfer of the same to the appellant and the Government including its subsequent transferee is legally and duty bound to restore possession to the plaintiff. Accordingly, the judgment, and decrees of the Courts below in both the suits are affirmed.

 

Sena Kalyan Sangstha vs Haji Sufi Fazal Ahmed 10 BLC (AD) 198.

 

Articles 4 and 5

 

From the parent provisions of Articles 4-arid 5 of PO No. 16 of 1972 it is clear that the Government are fully authorised to transfer any abandoned property by way of sale and as such the provision in clause (c) of Rule 10(1) of the Abandoned Property (Buildings in the Urban Areas) Rules, 1972 does riot divest the Government of its power to deal with the property in question in the manner as has been done by the memo dated 10-4-85.

 

Asaf Khan and others vs Court of Settlement, First Court and others 8 BLC 1.

 

Article 6

 

The essence of this Article is that no abandoned property shall be transferred or create encumbrance in contravention of Article 6 of President's Order No. 16 of 1972. In such a case the property must be an abandoned property within the meaning of the Order. When the property was not even declared as an abandoned property Article 6 of the Presidenl's Order No. 16 of 1972 is not applicable in the present case.

 

Ali Hossain and another vs Ministry of Public Works 8 BLC 158.

 

Articles 7 and 16

 

The respondent government did not form any opinion whether the original owner of the said house, Syed Abdul Waheed, left Bangladesh and was absent from before 28-2-1972 and his staying abroad from Bangladesh after 28-2-1972 was prejudicial to the interest of Bangladesh. Furthermore, there is no materials on record to show that the respondent government took over possession of the said house as an abandoned property for the reason that it was left uncared for by its owner nor any notice, as required under Article 7 of President Order 16 of 1972 was issued on any occupant of the house before the possession of the said house was taken over as an abandoned property. In that view of the matter, subsequent inclusion of the said house in the "Ka" list as abandoned property under Ordinance No. 54 of 1985 without issuing of any notice as contemplated under section 4 of the said Ordinance is illegal and without jurisdiction,

 

Shahida Begum vs Government of Bangladesh represented by the Secretary, / Ministry of Housing and Works 10 BLC 476.

 

 

Article 7(2)(3) There was no necessity at all in the instant case to serve any notice upon the occupiers under Article 7(2) or (3) of President's Order No. 16 of 1972 inasmuch as at no point of time they have ever disputed the status of the property as abandoned property.

 

Eastern Industries (Bangladesh Ltd) vs Bangladesh & another 6 BLC 91.

 

Article 10

 

On the promulgation of the President's Order No. 16 of 1972 the property assumed the character of abandoned property and that as per provision of Article ]0 of the President's Order No. 16 of 1972 the property vested in the government and that possession of the property in question though claimed by the respondent No. 1, but as was not established was with him on 28-2-1972 when PO No. 16 of 1972 came into force and that as no material has been brought on record whereupon it can be said that the possession claimed by the respondent No. 1 is of the kind of possession as contemplated by the provision of section 53A of theTransfer of Property Act, as such, possession of the respondent No. 1 of the property in question is not protected under section 53A of the Transfer of Property Act.

 

Government of Bangladesh vs KM Zaker Hossain and others 8 BLC (AD) 27.

402

Bangladesh Agricultural Development Corporation Ordinance, 1961

 

 

Section 3(2) –

The petitioner should have impleaded BADC as a respondent being the necessary and proper party against whom the relief is actually claimed. The petitioner has impleaded the officers of the Corporation who have no authority to reinstate him to his post. The petition is therefore not maintainable.

KM Fazlul Haque vs Chairman, Bangladesh Agricultural Development Corporation and others 49 DLR 27.

403

Bangladesh Agriculture Development Corporation (BADC) Service Regulations, 1990

Citation: 10 BLC 734, 10 BLC 643

Case Year: 1990

Subject: Bangladesh Agriculture Development Corporation (BADC) Service

Delivery Date: 2018-04-30

Bangladesh Agriculture

Development Corporation

(BADC) Service Regulations, 1990

 

Regulation 55(2)

 

In the absence of payment in lieu of notice the termination orders were void in the eye of law—The decisions of the Government as transpired from the papers on record on behalf of the respondents only that the excess number of employees of the BADC should be encouraged to retire voluntarily but nowhere the Government wanted the BADC to apply the provisions of Regulation 55(2) of the Serivce Regulations of 1990. In the instant cases, neither Agricultural Development Corporation Ordinance, 1961, nor the Service Regulations made thereunder, are protected legislations under Article 47(2) of the Constitution.

 

Shamsul Hague Mazumder vs BADC 10 BLC 734.

 

Regulation 55(2)

 

The respondent No.l Corporation and the Government are now estopped from denying the petitioners their opportunity to opt for usual retirement as assured them on 17-11-1999. Accordingly, the High Court Division views the impugned notification in Annexure-A to be the product of an opaque process constituting a deviation from a regular practice of prior consultation. The impugned notification as consequently formulated also makes a sudden deviation, from the established service and benefit policy enunciated on 17-11-1999 and thereby negates the petitioners' legitimate expectation to be treated fairly and consistently with the notification dated 17-11-1999. In this regard, the High Court Division finds merit in the petitioners' contention that the impugned notification is to'be deemed as having been passed without lawful authority and to be of no legal effect. All Governmental action touching upon individual's rights must be authorised by law. Accordingly, since the impugned office orders draw upon the legal authority of the notification dated 13-10-2002, which, however had no currency and was therefore, unenforceable on the date of the impugned office orders the said' office orders as issued on 30-10-2002 are to be deemed as having been issued without lawful authority and to be of no legal effect.

 

BADC Employees Union and others vs BADC 10 BLC 643.

404

Bangladesh Banks (Nationalisation) Order, 1972

Citation: 15BLD (HCD) 575, 14 BLD (AD) 117, 14 BLD (AD) 5

Subject: Bangladesh Banks (Nationalisation)

Delivery Date: 1970-01-01

 

 

 

Bangladesh Banks (Nationalisation) Order, 1972

P. 0. NO. 26 OF 1972

 

Under P.O. 26 of 1972 Sonali Bank is a legal entity which shall sue and be sued in its corporate name. The instant suit being filed against the Managing Director of the Bank, without impleading Sonali Bank itself, it is not maintainable in law.

Managing Director, Sonali Bank and others Vs. Md. Jahangir Kabir Molla and another, 15BLD (HCD) 575.

Ref: Dosta Textile Mills Ltd. and others Vs. Shudansu Bikash Nath, 40 DLR (AD) 45; 44DLR (AD) 260; 22 DLR (SC) 284; 23 DLR (SC) 85; Khulna Newsprint Mills Ltd. Vs. Khuhla News Print Employees Union, 25 DLR (SC) 85—Cited.

 

 

Bangladesh Bank Order, 1972 (P.O. No. 137 Of 1972)

 

Bangladesh Bank (Staff) Regulations, 1972 Regulation No. 12(i) and (ii)

Regulation—12(i) gives option to an employee to leave his job or to discontinue his service by giving three months’ notice in writing while Regulation 12(u) gives a similar option to the Bank to determine the service of any employee in class I and above by giving three months’ notice or three months’ pay in lieu thereof. Such a termination is ordinarily known as termination simpliciter without entailing any stigma or punishment. The word “released” actually means simple termination.

Bangladesh Bank and others vs. Mohammad Abdul Mannan, 14 BLD (AD) 117.

 

Bangladesh Bank Establishment Manual Paragraph 185(g) and 186

The Paragraph provides that when an appeal is submitted through the proper channel, the Officer-in-Charge may withhold and not forward a petition to the higher authorities if it is not preferred within six months after the date on which the appellant was informed of the order appealed against and no reasonable ground is shown for the delay. Paragraph 186 thereof provides that in every case in which petition is withheld, the appellant will be informed of the fact and the reasons for it by the Officer-in-Charge.

The appellant having accepted a fresh entry into the service in terms of the circular dated 28.6.77 and having worked in terms of the said circular for a number of years without any protest, the appellant will not now be allowed to turn back and content that the circular in question is illegal and has no application to him. This will be putting a premium to approbation and reprobation.

Md. Nurul Huq Vs. Governor, Bangladesh Bank Head office, Dhaka and others, 14 BLD (AD) 5.

 

405

Bangladesh Bar Council Canons of Professional Conduct and Etiquette

Citation: 7 BLC 578

Subject: Bangladesh Bar Council Canons of Professional Conduct and Etiquette

Delivery Date: 2018-05-03

Bangladesh Bar Council Canons

of Professional Conduct and

Etiquette

 

Canon No. II

 

When Rule 4(2) of Order III of the Code clearly mandates that unless the client itself determined the appointment of the learned Advocate with the leave of the Court till then such appointment will remain valid and none other than the client can seek for determination of the appointment of the learned Advocate and hence the impugned order debarring the learned Advocate from conducting the hearing of the suit on behalf of the defendants is liable to be set aside.

 

Ferdoushi Begum & Rubi and others vs Shauka Khatun & ors 7 BLC 578.

406

Bangladesh Biman Corporation Employees (Service) Regulations, 1979

Citation: 1, MLR (1996) (HC) 73, 5 MLR(2000)(AD) 258, 2, MLR(1997) (AD) 71, 3, MLR(1998) (HC) 185, 1, MLR (1996) (HC) 295, 7 BLD (AD) 192

Case Year: 1979

Subject: Bangladesh Biman Corporation Employees

Delivery Date: 2018-04-01

Bangladesh Biman Corporation Employees

(Service) Regulations, 1979

 

Regulation 11— Age of retirent—

 

The age limit of the petitioner to remain in seivice till attaining 57 years cannot be reduced or curtailed specially when such right of an employee is accrued under the law when he was appointed. Regulation 11 as amended by S.R.O. No. 56 AL/84 dated 5-2-1984 reducing age limit of retirement of Cabin Crew from 57 to 35 years without corresponding amendment of rule 3 and 4 of Bangladesh Biman Seivice (Pension and Gratuity), Rules, 1988 being discriminatory and violative of article 27 and 28 of the Constitution is void and of no legal effect.

 

Dalia Parueen Vs. Bangladesh Biman Corporation and another. 1, MLR (1996) (HC) 73.

 

Regulation 11A(2)— Public Servants (Retirement) Act, 1974- Section 9(2)- Power of the Government to retire Biman Employee-Defence Service officers (Appoint­ment and Fixation of Seniority in Civil Post) Rules 1983

 

An employee of Bangladesh Biman Corporation is a Public Servant within the meaning of section 2(d) of the Public Servants (Retirement) Act, 1974. A Defence officer's past service is counted .towards his seniority on appointment in civil post. Therefore the Public Servants (Retirement) Act, 1974 is applicable to such an employee after completion of 25 years seivice including his past defence service.

 

Bangladesh Biman Corporation Vs. Lt Col. (Reid.) Md. JoynuL Abedin & others- 5 MLR(2000)(AD) 258.

 

Regulation 18(C)- Determination of seniority of the recruits under one advertisement and under same recruitment examinations but undergoing training in batches one after another due to logistic constraints

 

Where the employees are recruited in pursuance of one advertisement under the same written and viva voce. examinations and where the results of the training of such recruits are counted towards determining their inter-se-seniority, the infer se-seniority of such employees should be determined on the basis of the merit taken together of the written examination, viva voce test and the result of the training regardless of whether such recruits are given training at a time or in batches at different time due to logistic problem.

 

Aminul Hoque and others Vs. Rejiqul Hassan and others. 2, MLR(1997) (AD) 71.

 

Regulation 24 Foregoing promotion does not exempt from transfer

 

An employee of Bangladesh Biman is under the legal obligation to serve in any station in Bangladesh and abroad as required by regulation 24 of the Regulations, 1979. That the writ petitioner has forgone his right of promotion by itself does not exempt him from being transferred elsewhere for administrative reasons. The order of transfer of the petitioner being not one offending any of the fundamental rights, does not call for any interference under the writ jurisdiction.

 

KM. Nurul Islam us. Secretary, Ministry Civil Aviation and Tourism and others 3, MLR(1998) (HC) 185.

 

Rule 4— Voluntary retirement— Non-impleading of Biman Corporation as party not fatal—

An employee of Bangladesh Biman Corporation has option to retire on completion of 25 years service by giving 30 days prior notice of the intention and the authority is bound to allow such voluntary retirement. An application for optional retirement cannot be refused on ground of vague and wild allegation and when no enquiry has been commenced. When the Managing Director is made party mere non-impleading of the Bangladesh Biman Corporation being of technical nature will not frustrate the purpose of the writ petition.

 

M. Rashiduzzaman Vs. Gouernment of  Bangladesh and others. 1, MLR (1996) (HC) 295.

 

Section 14 and 31 (d)- Bangladesh Biman Corporation Employees (Service) Regulations, 1979- Regulation 18 and 19

 

Interpretation of statute— In case of conflict parent law shall prevail over subordinate legislation.

Classification of "existing employees" and "new entrants" Fixation of seniority Majority view— Per Shahabuddin Ahmed-J. B.H. Chowdhury J and M.H. Rahaman-J. concurring with him.

 

The Ordinance XIX of 1977 was promulgated in 1977 with a provision, for making appointments of officers and employees of the Corporation. In exercise of power conferred by article 30, the Biman Corporation has made the Regulations in December 1979 and it came into force from the date. The respondents having been appointed earlier than the Regulations, that is, in June 1978 cannot be brought into the class of "new entrants" as referred to in Rule 18(a) for the purpose of determination of seniority unless the Regulations were given effect from the date of such appointment or from the date of the Ordinance. "Existing employees" therefore mean those employees who were in the Corporation's service when the Regulations were made and published. The employees who are appointed after the Regulations came into force, are the 'new entrants'.

 

Minority view— F.K. Fazle Munim— C.J. gave dissenting judgment. A.T.M. Afzal- J concurring with him.

 

The Regulations cannot in the absence of such classification in the Ordinance divide the employees into two categories, such as, 'new entrants' and "existing employees'. It is only the parent Act i.e. the Ordinance which must provide the service structure of the Corporation's' employees. Provisions of the Regulation 18(a) and 19 must be constructed with reference to section 14 and 31(d) of the Ordinance which, by their terms, created the demarcation between the two groups of employees, namely, those employees of the Biman who stood transferred to the Corporation on the date of the coming into operation of the Ordinance and those employees who will be appointed after the Corporation came into force.

 

Parent Law shall prevail

 

There is no dispute that provisions of a subordinate legislation must be in conformity with those of its parent legislation and in the case of any conflict the provisions of the parent law shall prevail. In this case the Ordinance is the parent law and the Regulations are its subordinate legislations and if there is any vacuum in the subordinate legislation in respect of any matter, but about which specific provision has been made in the parent law, then the provision of the parent law shall be read into the subordinate legislation.

 

Bangladesh Biman Corporation Vs. Syed Aftab AH and others- 7 BLD (AD) 192.

407

Bangladesh Cadre Service Seniority Rules, 1983

Citation: 8 BLC (AD) 80

Case Year: 1983

Subject: Bangladesh Cadre Service Seniority

Delivery Date: 2018-05-03

Bangladesh Cadre Service Seniority Rules, 1983

 

Rule 3(c)

 

The undisputed facts are that the petitioners, Assistant Superin­tendents of Police in the AT Case, were directly recruited in January 20,1991 in the BCS (Police Cadre) and they were confirmed in the said post of ASP by the letter dated 13-12-1994 when the opposite parties No. 3-86 in the AT Case were promoted in 1994 from the post of Inspector of Police as officiating ASP and PSC recommended for regularisation of the appointment of the opposite parties No. 3-86 to the cadre post of BCS (Police Cadre) by letter dated 28-1-1998. In the instant case PSC recommended for regularisation of the opposite parties No. 3-86 on 28-1-1998 and thereupon the said opposite parties became the members of the Bangladesh Civil Service (Enforcement: Police Cadre) and that being so in law they can only claim seniority in the Cadre Service on and from 28-1-1998 and no other date.

 

Khalilur Rahman (Md) PPM and others vs Md Kamrul Ahsan and others 8 BLC (AD) 80.

408

Bangladesh Cadre Service Seniority Rules, 1983

Citation: 8 BLC (AD) 80

Case Year: 1983

Subject: Bangladesh Cadre Service Seniority

Delivery Date: 2018-05-03

Bangladesh Cadre Service Seniority Rules, 1983

 

Rule 3(c)

 

The undisputed facts are that the petitioners, Assistant Superin­tendents of Police in the AT Case, were directly recruited in January 20,1991 in the BCS (Police Cadre) and they were confirmed in the said post of ASP by the letter dated 13-12-1994 when the opposite parties No. 3-86 in the AT Case were promoted in 1994 from the post of Inspector of Police as officiating ASP and PSC recommended for regularisation of the appointment of the opposite parties No. 3-86 to the cadre post of BCS (Police Cadre) by letter dated 28-1-1998. In the instant case PSC recommended for regularisation of the opposite parties No. 3-86 on 28-1-1998 and thereupon the said opposite parties became the members of the Bangladesh Civil Service (Enforcement: Police Cadre) and that being so in law they can only claim seniority in the Cadre Service on and from 28-1-1998 and no other date.

 

 Khalilur Rahman (Md) PPM and others vs Md Kamrul Ahsan and others 8 BLC (AD) 80.

409

Bangladesh Cinematograph Rules, 1972

 

 

Rule 3 –

Though there were some lapses in the application for no objection certificate relating to cinematograph exhibition, ultimately they were removed by spot enquiry. The application therefore, cannot be rejected as being defective one.

Shaikh Tabibur Rahman vs Shaikh Nazrul Islam 46 DLR 265.

Rule 5 –

There is no bar against filing a fresh application for cinematograph exhibition. Once an application is rejected it does not mean fresh application will not be allowed, for there is no bar in law for making any fresh application instead of preferring an appeal.

Shaikh Tabibur Rahman vs Shaikh Nazrul Islam 46 DLR 265.

410

Bangladesh Citizenship (Temporary Provisions) Order, 1972

Citation: 10 BLC (AD) 198

Case Year: 1972

Subject: Bangladesh Citizenship

Delivery Date: 2018-05-03

Bangladesh Citizenship (Temporary Provisions) Order, 1972

[PO 149 of 1972]

 

Articles 2 and 3

 

By conferring the citizenship the respondent is deemed to be a citizen of Bangladesh and has continued to be a permanent resident as a citizen of Bangladesh. The conferment of citizenship to the resident under Article 2 of the Order impliedly declared that the plaintiff-respondent qualified himself as a citizen of Bangladesh. The plaintiff's staying in Pakistan) without any formation of any opinion that his stay was prejudicial to the interest of Bangladesh, under the circumstances should not be the consideration, inasmuch as the concerned laws do not put any such disqualification to be deemed against a citizen of Bangladesh. The respondent being a citizen and permanent resident of Bangladesh and having been found to be deemed to be a citizen upon conferment of citizenship under the provisions of the Bangladesh Citizenship (Temporary Provisions) Order, 1972, and under Article 3 thereof, the Government considering the circumstances having decided as such which shall be final and the appellants have as well failed to prove that he is otherwise disqualified under the' concerned laws including the law on abandoned properties.

 

Sena Kalyan Sangstha vs Haji Sufi Fazal Ahmed and ors 10 BLC (AD) 198.

411

Bangladesh Civil Service (Examination for Promotion) Rules, 1986

Citation: 9 BLC (AD) 67

Case Year: 1986

Subject: Bangladesh Civil Service (Examination for Promotion)

Delivery Date: 2018-05-03

Bangladesh Civil Service (Examination for Promotion)

Rules, 1986

 

Rule 8

 

The selections of 46 officers was properly made by the Departmental Promotion Committee on the basis of merit-cum-seniority and were recommended for promotion as they all have passed the departmental examinations which the appellant has failed to pass but were promoted to the present Grade under the concessionaire rule 8(1) of BCS (Examination for Promotion) Rules, 1986 and the appellants being the beneficiaries of the said rules as they derived the benefit for themselves to which they are not otherwise entitled to under rule 5 including rule 5(3A) of the Bangladesh Civil Service (Recruitment) Rules, 1981 and the appellants as well were not at all affected by rule 8(e) and, as such, the impugned rules are not violative of the fundamental rights guaranteed under Articles 26, 27, 29(1) and 31 of the Constitution.

 

Delowar Hossain Mollah and others vs Secretary, Ministry of Establishment and ors 9 BLC (AD) 67.

412

Bangladesh Civil Service Recruitment Rules, 1981

Citation: 9 BLC (AD) 67

Case Year: 1981

Subject: Bangladesh Civil Service Recruitment

Delivery Date: 2018-05-03

Bangladesh Civil Service Recruitment Rules, 1981

 

Rule 8

 

The selections of 46 officers was properly made by the Departmental Promotion Committee on the basis of merit-cum-seniority and were recommend­ed for promotion as they all have passed the departmental examinations which the appellant has failed to pass but were promoted to the present Grade under the concessionaire rule 8(1) of BCS (Examina­tion for Promotion) Rules, 1986 and the appellants being the beneficiaries of the said rules as they derived the benefit for themselves to which they are not otherwise entitled to under rule 5 including rule 5(3A) of the Bangladesh Civil Service (Recruitment) Rules, 1981 and the appellants as well were not at all affected by rule 8(e) and, as such, the impugned rules are not violative of the fundamental rights guaranteed under Articles 26, 27, 29(1) and 31 of the Constitution.

 

Delowar Hossain Mollah and others vs Secretary, Ministry of   Establishment and ors 9 BLC (AD) 67.

413

Bangladesh Civil Service Seniority Rules, 1983

Citation: 9BI.T (AD)-226, 9 BLT (AD)-2

Subject: Bangladesh Civil Service Seniority

Delivery Date: 1970-01-01

 

 

Bangladesh Civil Service Seniority Rules, 1983

 

Section-3

The case filed before the Administrative Tribunal is not maintainable in law as necessary parties who were adversely affected by the order were not brought before the court in accordance with law. The cause title of the application of respondent No. 1 clearly shows that 29 directly recruited Assistant Commissio­ners of "faxes were not at all made parties in the case and no notice was individually served on them.

Mahbubur Rahman & Ors. Vs. Taslimuddin Ahmed & Ors. 9BI.T (AD)-226

 

Rule-3(e)

In 1982 there were two advertisements, one on 10.06.1982 for regular batch and another on 22.12.1982 for Magistrates to BCS (Admn: Admn) Cadre, Respondent Nos. 2-61 were actually recruited through earlier advertise­ment. Public Service Commission, on the basis numerical numbers to all BCS Exams so far held, and according to this, respondent Nos. 2-61 belongs to 1st BCS Exanimation whilst the appellants batch belong to 2nd BCS Examination. This being the case appellants are as a batch junior to the respondents-- as a matter of fact. Rule 3(e) of the BCS Seniority Rules, 1983 is not applicable for determining the seniority of the appellants as well as of respondent as they were directly recruited on the basis of two different advertisements, whereas Rule 3(e) is applicable only in case of determining seniority involving lateral entrance.

A.H.M. Mustain Billah & Ors. Vs. Bangladesh & Ors.  9BLT (AD)-2.

 

Rule-3(g)

Whether amended provision of Rule-3(g) was not given retrospective effect and as such it was not applicable in the case of appellants and the respondents who were appointed in 1983 and 1984.

Held: As a matter of fact there was no need to give retrospective effect to the amended provision of sub-rule 3(g) because the seniority position of the respondents was always above the appellants batch. Government always reserves the right to fix seniority according to existing rules and principles. Sub-Rule 3(g) was nothing new as identical provision was already there in the general principle of the seniority, 1970. This incorporation in the BCS Seniority Rules 1983 was necessary to fulfill legal requirement as it has protected the seniority of all officers of all cadres belonging to first BCS examination not only of respondent Nos. 2-61. Therefore, sub-rule 3(g) was incorporated not only to give benefit to respondent Nos. 2-61. Further, the President is clearly empowered under the provision of Article 133 to  make rules prospectively and retrospectively and in that view it cannot be argued that Rule 3(9) of Rule . 1982 cannot apply retrospectively in the case of respondents who were appointed in 1984 and the appellants who were appointed in 1983 and Rule 3(g) was not applicable with retrospective effect in the case of the appellants and the respondents. It will also be seen that the dispute regarding seniority of the officers of 1982 regular batch and that of 1982 special batch having arisen after amalgamation if 1992, Rule 3(g) which came into operation in 1985 will apply in determining the seniority of the officers of these two batches and the question of giving retrospective effect of Rule 3(g) does not strictly arise.

A.H.M. Mustain Billah & Ors. Vs. Bangladesh & Ors. 9 BLT (AD)-2.

 

Rule-3(g) read with Constitution of Bangladesh, 1972

Articles-27, 29 & 31

The correct position is that the appellants sat for a TEST of 300 marks only (100 marks psychological test and 200 mark viva voce) arranged by the Public Service Commission to recruit personnel against 650 post of Magistrates to fill up urgent vacancies created due to the introduction of upazila system and for this BCS (Recruitment) Rules had to be amended. This test was distinctly different from the regular BCS Examination of 1600 marks which the respondents appeared and come out successful. PCS's advertisement dated 22.12.1982 under which the appellants were appointed clearly mentioned that their appointment was not to be considered as placement in the cadre direct.

The conditions in their offer of appointment (Annexure C) and the subsequent amendment of BCS (Seniority) Rules. 1983 (Annexure D) incorporating sub-rule 3(g) (Annexure E) are not at all contrary to the condition stipulated in the advertisement dated 22.12.1982. The advertisement spelt out that the appellants, as usual, would not be entitled for placement in the BCS (Administration) Cadre straightway: because, the Government was fully aware that the test conducted for their recruitment was not in view, a regular BCS Examination. This implications of the advertisement has been made clearer in the offer of appointment — the effect of unifying the two services and issuance of Notification dated 04.04.1994 has in no way violated the fundamental rights of the appellants guaranteed under the above two Articles of the Constitution.

A.H.M. Mustain Billah & Ors. Vs. Bangladesh & Ors. 9 BLT (AD)-2.

 

414

Bangladesh House Building Finance Corporation Order 1973

Citation: 6 BLC 751

Case Year: 1973

Subject: Bangladesh House Building Finance Corporation

Delivery Date: 2018-05-03

Bangladesh House Building Finance Corporation Order 1973

[PO No. 7 of 1973]

 

Article 27Article 27 of President's Order No. 7 of 1973 being a special Law providing special provisions for prompt realisation of the dues of the Corporation from its defaulting loanees and it being a self-sufficient and self-contained legislation for carrying out the legislative intent, the Corporation is not required to seek redress before the Artha Rin Ad'alat. The provisions of one special law cannot over-ride the provisions of another special law unless specifically provided.

 

HBFC vs Shahid Sarivar Abu Hossain 6 BLC 751.

415

Bangladesh Industrial Enterprise (Nationalization) Order 1972

Citation: 7 BLC (AD) 144, 9 BLC 539

Case Year: 1972

Subject: Bangladesh Industrial Enterprise

Delivery Date: 2018-05-03

Bangladesh Industrial

Enterprise (Nationalization)

Order 1972

[po no. 27 of 1972]

 

Article 4—Legitimate expectation

 

Since the respondents could not establish that enterprise in question was one of those enterprises shares of which as mentioned in the Gazette Notification were under scrutiny for transfer, as such, the respon­dents in the light of mere mentioning in the Gazette Notification "shares of some Textile Industrial Enterprises are under scrutiny for transfer" cannot be said to have in any case of legitimate expectation to have the National Cotton Mills Ltd denationalized. Mere approaching the Government by the 30% shareholders of a particular Nationa­lized Industrial Enterprise would not create a right or entitlement to have the enterprise denationalized because decision as regard denationalization of a particular nationalized industrial enterprise exclu­sively lies with the Government and th^t such decision is only taken in the national interest and as such even on the establish­ment of 30% shareholdings right Bangla­deshi nationals cannot as of right claim denationalization of the nationalized enterprise if Government consider that denationalization would be against national interest. Since there is no material on record wherefrom it can be said that Government in rejecting the respondent's prayer for denationalization of the enterprise in question acted in violation of its declared policy relating to denationa­lization or that departed from its policy relating to denationalization and as such the Government in rejecting representation made by the respondents as conveners of the Committee of the shareholdings of the National Cotton Mills Ltd. has not acted unfairly or unreasonably.

 

Chairman Bangladesh Textile Mills Corporation vs Nasir Ahmed Chy and others 7 BLC (AD) 144.

 

Articles 16 and 25

 

The respondents ought to have Appreciated that their authority to resort to Rule 55(2) was circumscribed by the resolution dated 7-8-92 of the BJMC Board unanimously approving and adopting the recommen­dation of the five-member committee for transferring employees who were willing to continue their service to other units under the BJMC.

 

The arbitrary decision as has been given by respondent 1 as effected by respondent 2 in issuing wholesale termination letters is a clear manifestation of gross abuse of power and is thus without any lawful, authority and of no legal effect and being unconstitutional and void as being in violation of the petitioners' rights under Articles 27, 29 and. 31 of the Constitution.

 

Dr ATM Nazmul Akhter and others vs Secretary, Ministry of Jute, and another 9 BLC 539.

416

Bangladesh Inland Water Transport (Time and Fare Table Approval) Rules, 1970

Citation: 6 BLC 23

Case Year: 1970

Subject: Bangladesh Inland Water Transport

Delivery Date: 2018-05-03

Bangladesh Inland Water

Transport (Time and Fare Table

Approval) Rules, 1970

 

Rule 18

 

As the respondent No.5 did not file review petition before the Review Board following the Rule 18 the respondent Nos.3 and 4 acted illegally in allowing the application for including the 'Charduani' ghat in the route permit and time table of respondent No.5 violating the Rule 18 of the Rules of 1970.

 

Talim Ltd vs Bangladesh, and others 6 BLC 23.

417

Bangladesh Jute Mills Corporation Rules, 1990

Citation: 9 BLC 539

Case Year: 1990

Subject: Bangladesh Jute Mills Corporation

Delivery Date: 2018-05-03

Bangladesh Jute Mills Corporation Rules, 1990

 

Rules 55(2)

 

The authority so given, to have any validity, must be tempered with reasonableness and transparency. The respondents ought to have appreciated that their authority to resort to Rule 55(2) was circumscribed by the resolution dated 7-8-92 of the BJMC Board unanimously approving and adopting the recommenda­tion of the five-member committee for transferring employees who were willing to continue  their service  to other units under the BJMC.

 

The arbitrary decision as has been given by respondent 1 as effected by respondent 2 in issuing wholesale termination letters is a clear manifestation of gross abuse of power and is thus without any lawful authority and of no legal effect and being unconstitutional and void as being in violation of the petitioners' rights under Articles 27, 29 and 31 of the Constitution.

 

Dr.  ATM Nazmul Akhter and others vs Secretary, Ministry of Jute and another 9 BLC 539.

 

418

Bangladesh Jute Research Institute Act 1974

Citation: 6 BLC 175

Case Year: 1974

Subject: Bangladesh Jute Research Institute

Delivery Date: 2018-05-03

Bangladesh Jute Research

Institute Act 1974

(XII of 1974)

 

Section 19

 

In view of section 19 of Bangladesh Jute Research Institute Act, 1974 the office order dated 13-3-95 issued by the Ministry of Agriculture deleting the mandatory provision of Regulation 43(8) of Bangladesh Jute Research Institute Employment Regulation, 1990 in taking final decision in the matter of any proceeding against an accused person in 180 working days after communicating the charge levelled against him, the so-called amendment in Regulation 43(8) by such office order has no legal basis and hence the petitioner having not been dealt with within 180 working days is deemed to be innocent and he is exonerated from the charge levelled against   him.

 

ASM Seraj-uddin vs Bangladesh, and others 6 BLC 175.

419

Bangladesh Jute Research Institute Employment Regulation, 1990

Citation: 6 BLC 175

Case Year: 1990

Subject: Bangladesh Jute Research Institute Employment

Delivery Date: 2018-05-03

Bangladesh Jute Research

Institute Employment

Regulation, 1990

 

Regulation 43(8)

 

In view of section 19 of Bangladesh Jute Research Institute Act, 1974 the office order dated 13-3-95 issued by the Ministry of Agriculture deleting the mandatory provision of Regulation 43(8) of Bangladesh Jute Research Institute Employment Regula­tion, 1990 in taking final decision in the matter of any proceeding against an accused person in 180 working days after communicating the charge levelled against him, the so-called amendment in Regulation 43(8) by such office order has no legal basis and hence the petitioner having not been dealt with within 180 working days is deemed to be innocent and he is exonerated from the charge levelled against him.

 

ASM Serajuddin vs Bangladesh, and others 6 BLC 175.

420

Bangladesh Land Management Manual, 1990

Citation: 6 BLC 11

Case Year: 1990

Subject: Bangladesh Land Management

Delivery Date: 2018-05-03

Bangladesh Land Management Manual, 1990

 

Regulation 302

 

Once the Deputy Commissioner has found that the deed of exchange is a genuine one in respect of property both situated at Comilla and Dhaka it cannot be treated as enemy property or vested property when regulation 302 of Bangladesh Land Management Manual, 1990 is very much applicable in the instant case and hence the order passed by the defendants in refusing to regularise the plaintiff's exchange case is illegal and discriminatory and the suit is liable to be decreed in full.

 

Moymena Khatun and others vs ADC (Revenue) and another 6 BLC 11.

421

Bangladesh Local Council Service Rules, 1968

Citation: 6 BLC 463

Case Year: 1968

Subject: Bangladesh Local Council Service

Delivery Date: 2018-05-03

Bangladesh Local Council

Service Rules, 1968

 

Rule 14(2)

 

Respondent 4 cancelled the order of LPR without giving any show cause notice and without affording the petitioner any opportunity of being heard violating the principle of natural justice and hence the cancellation, order of LPR apparently seems to be arbitrary, malafide and illegal as the authority withdrew the benefits granted earlier in due course of law and procedure.

 

Abdul Awal Munshi (Md) vs BWDB and others 6 BLC 463.

422

Bangladesh Passport Order, 1973

Citation: 7 BLC (AD) 67,

Case Year: 1973

Subject: Bangladesh Passport

Delivery Date: 2018-05-03

Bangladesh Passport Order, 1973

[PO No. 9 of 1973]

 

Article 7(2)Per AM Mahmudur Rahman J :

 

The power conferred under Article 7(2) of the Passport Order to impound a passport is violative of fundamental right guaranteed under Article 36 of the Constitution and rules of natural justice is applicable in such a case inasmuch as it seriously interferes with the constitutional right of the holder of a passport to go abroad in restricting him to leave and re-enter Bangladesh.

 

HM Ershad vs Bangladesh and ors 7 BLC (AD) 67.

 

Articles 7(4) and 10

 

The order of impounding of the passport of the appellant in this case obviously has been passed on the basis of the order of the Secretary, Ministry of Home Affairs and nothing could be shown to us to indicate that there was any chance to frustrate impounding of the passport by the appellant. The appellant having not been supplied with the copy of the order recording reasons therefore restricting the appellant from leaving the country is violative of Article 7(4) of the Bangladesh Passport Order and as such the appellant had no opportunity to take a decision to avail of the alternative remedy by way of appeal as provided in Article 10 of the Passport Order, 1973. For such violation the order of impounding a passport cannot be held to be lawfully made. Withholding the order of the Secretary, Ministry of Home Affairs also is indicative of malafide. Therefore, there is no reason to defeat the writ petition on the ground of doctrine of exhaustion.

 

HM Ershad vs Bangladesh and ors 7 BLC (AD) 67.

 

Article 10

 

Right to move the High Court Division in accordance with clause (1) of Article 102 for the enforcement of fundamental right conferred by this part is also a fundamental right under Article 44 of the Constitution. Where a person moves the High Court Division under Article 102(1) of the Constitution for enforcement of his fundamental right the writ petitioner is not required to avail of the alternative remedy before any other forum, in the present case before the appellate authority as contemplated under Article 10 of the Bangladesh Passport Order. It may be pointed out that proviso to Article 10 does not provide for any appeal against any order made by the Government and the order of the Secretary is the order of the Government and in that case no appeal shall lie as contemplated in proviso to Article 10 of the Order and the writ petition is quite competent.

 

HM Ershad vs Bangladesh and ors 7 BLC (AD) 67.

423

Bangladesh Railway Servants (E&D) Rules, 1961

Citation: 6 BLC (AD) 94

Case Year: 1961

Subject: Bangladesh Railway Servants

Delivery Date: 2018-05-03

Bangladesh Railway Servants (E&D) Rules, 1961

 

Rule 15

 

Considering the legal position the Administrative Tribunal found that the case was filed well within time. The Administrative Appellate Tribunal also came to the finding that the respondent had option to move the Director-General under Rule 1725 of the Railway Establishment Code which has been accordingly done and the case has been filed within six months from the order passed by the Director-General. No illegality and Wrong has been committed by the Tribunals below.

 

Director-General/ Secretary, Railway Division vs Md Elahi Baksha 6 BLC (AD) 94.

424

Bangladesh Red Crescent Society Order 1973

Citation: 9 BLC (AD) 201

Case Year: 1973

Subject: Bangladesh Red Crescent Society

Delivery Date: 2018-05-03

Bangladesh Red Crescent Society Order 1973

[po no. 26 of 1973]

 

Article 9C(2)(3)(b)l

 

There is no provision in the President's Order No. 26 of 1973 entitling the President of the Red Crescent Society to extend the period by one year of its ad-hoc committee and of its Chairman by two years, instead Article 9(b)(l) specifically provides that if for any reasons the general election could not be held the President shall appoint an ad-hoc committee or Managing Board to exercise the powers and perform functions for such committee or Board for a period of three months and Article 9(3) provides that an Ad-hoc committee or Managing Board shall hold the general election within three months from the date of appointment of the Ad-hoc Committee or Board and hence the impugned judgment of the High Court Division calls for no interference.

 

AFM Obaidur Rahman, Secretary General of Bangladesh Red Crescent Society, Attorney and others vs Md Asgar Ali and others 9 BLC (AD) 201.

425

Bangladesh Rifles (Special Provisions) Ordinance, 1976

Citation: 6 BLC 101

Case Year: 1976

Subject: Bangladesh Rifles (Special Provisions)

Delivery Date: 2018-05-03

Bangladesh Rifles (Special Provisions) Ordinance, 1976

[LXXXV of 1976]

 

Section 6(2)

 

There is nothing in the Ordinance indicating that in the event of non-compliance with the time limit as embodied in section 6(2) would follow any consequence, there is thus intrinsic evidence in the section itself which would indicate that the requirement of the fixation of time is not mandatory.

 

Forkan Ali (Md) vs Bangladesh, & others 6 BLC 101.

 

426

Bangladesh Rin Shalishi Ain, 1989

Citation: 10 BLC (AD) 53

Case Year: 1989

Subject: Bangladesh Rin Shalishi Ain

Delivery Date: 2018-05-03

Bangladesh Rin Shalishi Ain, 1989

[XV of 1989]

 

Section 6

 

Transfer of a property to meet expenditure of marriage of sister does not construe usufructuary mortgage as contemplated under section 6 of the said Act. From the provision of section 6 it further appears that, if any building (Aojrf) is situated on the land in question section 6 of the Act cannot be invoked.

 

Akkas Ali Biswas (Md) and other vs Ashit Kumar Mojumder 10 BLC (AD) 53.

427

Bangladesh Sangbad Sangstha Employees Service Rules, 1995

Citation: 7 BLC (AD) 24

Case Year: 1995

Subject: Bangladesh Sangbad Sangstha Employees Service

Delivery Date: 2018-05-03

Bangladesh Sangbad Sangstha Employees Service Rules, 1995

 

Rule 53

 

There can be no vested right in continuing a service for an indefinite period and section 13 of the BSS Ordinance empowers the BSS to determine the terms and conditions of its employees as it considers necessary for the efficient performance of its affairs. Rule 53 of the Rules of 1995 itself has given a reason to the effect that the age of retirement has been fixed at par with the provision of the Public Corporation (Management Co­ordination) Ordinance, 1986 which is neither arbitrary nor discriminatory.

 

ASM Habibulla and others vs Government of Bangladesh and ors 7 BLC (AD) 24.

428

Bangladesh Sangbad Sangstha Ordinance 1979

Citation: 7 BLC (AD) 24

Case Year: 1979

Subject: Bangladesh Sangbad Sangstha

Delivery Date: 2018-05-03

Bangladesh Sangbad Sangstha Ordinance 1979

[XX of 1979]

 

Sections 13 and 22

 

There can be no vested right in continuing a service for an indefinite period and section 13 of the BSS Ordinance empowers the BSS to determine the terms and conditions of its employees as it considers necessary for the efficient performance of its affairs. Rule 53 of the Rules of 1995 itself has given a reason to the effect that the age of retirement has been fixed at par with the provision of the Public Corporation (Management Co­ordination) Ordinance, 1986 which is neither arbitrary nor discriminatory.

 

ASM Habibulla and others vs Government of Bangladesh and ors 7 BLC (AD) 24.

429

Bangladesh Service Rules Part-1

Citation: 6 BLC (AD) 63, 7 BLC 236, 10 BLC (AD) 179

Subject: Bangladesh Service

Delivery Date: 2018-05-05

Bangladesh Service Rules Part-1

 

Rule 34

 

The petitioner having remained absent from duty for a continuous period of 5 years ceased to be in service as contemplated in Rule 34 of the Bangladesh Service Rules Part-1.

 

Ebadullah (Md) vs Bangladesh, represented by the Secretary, Ministry of Defence 6 BLC (AD) 63.

 

Rule 42(2)

 

Since the petitioner was not an employee under the Revenue Budget and he cannot be treated as a Government Servant and as such he cannot claim the benefit of the Time Scale, Selection Scale as are allowed by the Services (Pay and Allowances) Order for the years 1985,1991 and 1997 and there are no illegality or irregularity in the impugned orders and in the audit report.

 

Belayet Hossain (Md), vs DG, Directorate of Civil Audit and others 7 BLC 236.

 

Rules 248 and 258

 

Once the project comes to an end the services of the employees in the project also come to an end. The appellant having been appointed on work-charge basis in a project and the post not having made a regular one so as to entitle him to receive pension benefit could not claim relying on the equality basis being a persons similarly situated under certain mistake decision arrived at or misconstruction of certain circular having no force of law.

 

Abdur Rahman (Md) vs Government of Bangladesh represented by the Secretary,   Ministry   of  LGRD   and   Co­operatives and another 10 BLC (AD) 179.

430

Bangladesh Standard and Testing Institute Ordinance 1985

Citation: 9 BLC 601

Case Year: 1985

Subject: Bangladesh Standard and Testing Institute

Delivery Date: 2018-05-05

Bangladesh Standard and Testing Institute Ordinance 1985

[XXXVII of 1985]

 

Sections 19(1), 20, 21, 22, 23, 24, and 28

 

Even though the petitioners failed on all scores in this writ petition but succeeded on the welfare score which is the basic norm of 'social justice' as enshrined in the preamble and under Article 8 of the Constitution without rendering effective assistance and making offer to the company for manufacturing alternative 'non-alcoholic products, cancellation of the registration of the company was not proper. The Rule was made absolute on the terms that the industrial concern would manufacture such drink, for internal consumption, permissible under the law of the country, but not "Crown" and "Hunter or any alcoholic beverage, with due clearance from the authority concerned, if they so wish and the Board of Investment will render necessary assistance to the industry concerned for manufacturing and marketing of such products.

 

Crown Beverage Ltd and another vs Board of Investment and others 9 BLC 601.

431

Bangladesh Taking-Over of Control and Management of Industrial Concern Order, 1972

Citation: 10 BLC (AD) 198

Case Year: 1972

Subject: Bangladesh Taking-Over of Control and Management of Industrial Concern

Delivery Date: 2018-05-05

Bangladesh Taking-Over of

Control and Management of

Industrial Concern Order, 1972

[APO No. I of 1972]

 

Article 2

 

The top management i.e., the respondent's son as Managing Director, was very much available in Bangladesh and he was also running the industry at the material time, when it was taken over in violation of APO No.l of 1972. In view of the above, no such decision was taken by the Government regarding the specific purpose as to whether the industrial concern did or did not corne within the mischief of Acting President's Order No.l of 1972. The Management Board as well, in the absence of any authority or delegation of power and contrary to the provisions of law, had allegedly taken over the plaintiff's concern against the sanction of law.

 

Sena Kalyan Sangstha vs Haji Sufi Fazal Ahmed 10 BLC (AD) 198.

432

Bangladesh Water Development Board (Employee) Service Rules, 1982

Citation: 6 BLC (AD) 31

Case Year: 1982

Subject: Bangladesh Water Development Board (Employee) Service

Delivery Date: 2018-05-05

Bangladesh Water Development Board

(Employee) Service Rules, 1982

 

Rules 4 and 23(4)

 

Respondent No. 4 evidently is junior to the writ-petitioners who are the members of the General Administrative Cadres and they are entitled to promotion according to the joint seniority list prepared in 1991 with all benefits attached to their posts and such benefits cannot be taken away as has been done by the impugned orders as those fail on the doctrine of promissory estoppel.

 

Chairman, Bangladesh Water Development Board, WAPDA & anr vs Kazi Hedaytul Islam and others 6 BLC (AD) 31.

433

Bank Companies Act, 1991

Citation: 6 BLC 273, 10 BLC 487, 6 BLC (AD) 16, 10 BLC (AD) 138, 10 BLC 672

Case Year: 1991

Subject: Bank Companies

Delivery Date: 2018-05-05

Bank Companies Act, 1991

[XIV of 1991]

 

Sections 5,5(p), 31(1) and 52(1)

 

For the purpose of forming an opinion as to whether ITCL was engaged in carrying out its banking business without required permission of Bangladesh Bank the enquiry was held by the competent person of Bangladesh Bank with prior show cause notices and after enquiry and before forming final opinion and before making the impugned declaration a second show cause notice was served upon the ITCL informing its proposed action and as such there is no lack or dearth of natural justice. The High Court Division is satisfied and convinced that the ITCL has been carrying on Banking business and the Bangladesh Bank after examining the necessary documents legally holding enquiry after observing all the necessary formalities formed its opinion that the ITCL is a Banking Company and hence the Rule is discharged.

 

Islamic Trade and Commerce Ltd vs Bangladesh Bank and others 6 BLC 273.

 

Section 15 (Ka Ka)

 

As there was no wilful default on the part of the City Bank and/or its Directors or Managers/Officers concerned in not holding the 20th Annual General Meeting within time and to protect the interest of the share holders the application for holding Annual General Meeting after condonation of delay was allowed permitting the Bank to hold it within four months from date excepting the Agenda No. 4 relating to the Election of Directors.

 

Sk Abul Hassan vs City Bank Ltd and others 10 BLC 487.

 

Section 17(1)

 

Bangladesh Bank is authorised under section 17(1) of the Banking Companies Act, 1991 to determine the relevance, genuineness, connection between the lender Bank's documents and the loans in question and the liability or non-liability of the offending director and that the High Court Division is not the forum for adjudicating upon the documents of the offending director and the lender Bank.

 

Aminul Hoque Chowdhury vs Bangladesh Bank 6 BLC (AD) 16.

 

Section 17(1)

 

The appellant in Appeal No. 110 of 1999 challenged the legality of the notice dated 15th August, 1995 by filing Writ Petition No. 2179 of 1995 on 25th October, 1998 and he obtained an order of stay of the notice on that very day. The said order of stay was undisputedly obtained after expiry of two months from the date of receipt of the notice dated 15th August, 1995.

 

Admittedly, the appellant did not adjust his liabilities within two months from the date of receipt of the notice dated 15th August, 1995. Since the order of stay was obtained after the expiry of two months as was specified in the notice dated 15th August, 1995, the said order of stay was of no avail to the appellant for saving him from the mischief of the notice dated 15th August, 1995 that became effective on the expiry of two months from 23rd August, 1995. In the background of the above fact the Appellate Division is of the view that the notice dated 17th September, 1998 issued by the respondent No. 1 intimating the respondent No. 3 that the appellant because of the notice issued under section 17(1) of the Act issued on 15th August, 1995 ceased to be Director of the respondent No. 3 since he did not adjust his liabilities within the period specified in the notice was quite legal and that appellant has no reason to take exception to the said notice in any respect. Accordingly, the Appeal No. 110 of 1999 in dismissed.

 

Abdul Awal Mintoo and others vs Bangladesh Bank and others 10 BLC (AD) 138.

 

Section 17(1)

 

The appellant adjusted his liabilities during the continuation of the order staying the operation of the letter dated 3rd September, 1995 issued under section 17(1) of the Act and in that view of the matter the Appellate Division is of the opinion that notice dated 17th September, 1998 written by the j respondent No. 1 to the respondent No. 3 intimating that the post of the appellant as Director of the respondent No. 3 has ultimately stood vacated upon the expiry of two months from 25th September, 1995 since the appellant received the notice dated 3rd September, 1995 under section 17 of the Act on that date is not legal as because the appellant discharged his liability as regard his personal guarantee of Taka 2 lac with the respondent No. 3 within the period that was specified in the notice dated 3rd September, 1995 issued under section 17 of the said act. Accordingly, the Appeal Nos. 95 of 1999 and 102 of 1999 are allowed.

 

Abdul Ami, Mintoo and others vs Bangladesh Bank and others 10 BLC (AD)138.

 

Sections 61 & 79

 

Since sections 61 and 79 of the Banking Companies Act postulate that the power of the High Court Division to decide all claims in respect of bank companies and High Court Division has got the exclusive jurisdiction to entertain and decide on the cases whether such cases have arisen before or after the date of the order of the winding up of the bank company or before or after commencement of the Banking Companies Act, the impugned order was set aside.

 

Pioneer Bank Ltd vs Md Haris AH and others 10 BLC 672.

434

Banking Companies Ordinance, 1962

Citation: 6 BLC 203

Case Year: 1962

Subject: Banking Companies

Delivery Date: 2018-05-05

Banking Companies Ordinance, 1962

[LVII of 1962]

 

Section 10(2)(XI)

 

Section 10(2)(XI) of Banking Ordinance, 1962 authorises the Assessing Officer to examine the accounts as to bad and doubtful debts of the financial institution like the assessee and he is to allow relief if such debts are irrecoverable and has been written off from the books of accounts. As in the instant case the bad and doubtful debt amount having been written off from the books of accounts and the accounts being prepared according to the prescribed form of Banking Companies Ordinance the Assessing Officer acted illegally in not allowing such debts without assigning any reason.

 

Commissioner of Taxes vs Rupali Bank 6 BLC 203.

435

Bankruptcy Act 1997

Citation: 10 BLC (AD) 112

Case Year: 1997

Subject: Bankruptcy Act

Delivery Date: 2018-05-05

Bankruptcy Act 1997

[X of 1997]

 

Sections 10 and 28

 

It appears that the petitioner failed to reimburse the loan in due time in spite of several letters issued by respondent No. 2. The petitioner also admitted that he failed to repay the loan. The petitioner also failed to assign any ground in support of the contention that under section 28 the plaint of the respondent No. 2 was liable to be rejected. Accordingly, the petition is dismissed.

 

Ali Rizvi (Md) vs Bankruptcy Court and Additional District Judge and another 10 BLC (AD) 112.

436

Bengal Tenancy Act, 1885

Citation: 10 BLC 680

Case Year: 1885

Subject: Bengal Tenancy

Delivery Date: 2018-05-05

Bengal Tenancy Act, 1885

[VIII of 1885]

 

Sections 101 and 103A

 

The RS Khatians that have been recorded in the names of Naju Meah, a buyer, from some heirs of Mohammad Ali and also in the names of other purchasers, also lead to the presumption that the RS Khatians, in the names of Arab All's heirs were wrongly prepared and recorded in the anomaly after the death of Mohammad Ali. But such wrong preparation of record of rights will not deprive the heirs of Mohammad Ali from their Quranic inheritance. The heirs of Mohammad Ali had the right to sell out their respective shares to different buyers including the plaintiff, Arab Ali's heirs were entitled to only that portion of land of Md Ali which Arab Ali had inherited from his father, Mohammad Ali, along with other heirs.

 

Sakina Khatun and others vs Chunnu Meah and others 10 BLC 680.

437

Bengal Tenancy Act, 1885

Citation: 10 BLC 680

Case Year: 1885

Subject: Bengal Tenancy

Delivery Date: 2018-05-06

Bengal Tenancy Act, 1885

[VIII of 1885]

 

Sections 101 and 103A

 

The RS Khatians that have been recorded in the names of Naju Meah, a buyer, from some heirs of Mohammad Ali and also in the names of other purchasers, also lead to the presumption that the RS Khatians, in the names of Arab All's heirs were wrongly prepared and recorded in the anomaly after the death of Mohammad Ali. But such wrong preparation of record of rights will not deprive the heirs of Mohammad Ali from their Quranic inheritance. The heirs of Mohammad Ali had the right to sell out their respective shares to different buyers including the plaintiff, Arab Ali's heirs were entitled to only that portion of land of Md Ali which Arab Ali had inherited from his father, Mohammad Ali, along with other heirs.

 

Sakina Khatun and others vs Chunnu Meah and others 10 BLC 680.

438

Board of Intermediate and Secondary Education, Dhaka (Managing Committee of the Recognised Non-Government Secondary Schools) Regulations, 1977

Citation: 7 BLC 478, 10 BLC 346, 10 BLC 520

Case Year: 1977

Subject: Board of Intermediate and Secondary Education, Dhaka (Managing Committee of the Recognised Non-Government Secondary Schools) Regulations, 1977

Delivery Date: 2018-05-05

Board of Intermediate and Secondary Education, Dhaka

(Managing Committee of the Recognised Non-Government Secondary Schools) Regulations, 1977

 

Regulations 3-13

 

In Regulation 4 there is nothing to show that once a chairman is nominated by the Deputy Commissioner and his nomination is approved by the Board that nomination can be changed by the Board again. On perusal of the Regulation Nos. 3 to 13 of the Regulations of 1977, it appears that there is no provision to change or to replace the Chairman of the Governing Body of Non-Government College and hence the impugned order of replacement of the petitioner by the Deputy Commissioner, Pirojpur was made without any lawful authority.

 

Shamim Hasan (Md) vs Chairman, Board of Intermediate and Secondary Education and ors 7 BLC 478.

 

Regulation 7

 

Since the elected Managing Committee constituted on 24-2-2003 had not been dissolved in accordance with the regulation 7 of the Regulations of 1977 the subsequent formation of the ad hoc committee and approval given by the board to that ad hoc committee is illegal and without jurisdiction and the Managing Committee constituted on 24-2-2003 by election according to the provision of the said Regulation is still in existence in the eye of law.

 

Advocate Alhaj MA Mazid vs Bangladesh and others 10 BLC 346.

 

Regulation 7(1)(2)

 

The Committee being represented by its Chairman, the present petitioner had not been served with a show cause notice as contemplated in sub-regulation (2) of Regulation 7, and the Committee represented by the petitioner had not been given any opportunity of being heard before issuing the impugned memo dissolving the Managing Committee. Therefore, the respondent No. 1 has not exercised its power in accordance with Regulation 7 in dissolving the Committee and the Committee has not been dissolved in accordance with law. The impugned Memo dated 8-6-2003 is, therefore, declared to have been issued without any lawful authority and is of no legal effect.

 

Nurul Islam vs Board of Intermediate & Secondary Education, Dhaka and others 10 BLC 520.

439

Building Construction Rules, 1996

Citation: 7 BLC 544, 8 BLC (AD) 145

Case Year: 1996

Subject: Building Construction

Delivery Date: 2018-05-05

Building Construction

Rules, 1996

 

Rule 7(2)(Kha)

 

It appears that without taking evidence it is very difficult to ascertain whether the land of the petitioners falls within the Khulsi Raod Development Project of the Chittagong Development Authority and whether the neighbouring owners of the land have been granted No Objection Certificate in violation of any terms of the project under process by the Chittagong Development Authority. All these questions are related to fact and without taking evidence this matter cannot be settled in the writ jurisdiction.

 

AKM Khurshidul Anwar and another vs Chairman, CDA and others 7 BLC 544.

 

Rule 12

 

Sub-rule (1) of rule 12 of Building Construction Rules provides that if the width of a road is between 4.55 metres to 7.59 metres the highest height of the building cannot be above 18.50 metres. The particular pieces of plot are on a road only 12 feet wide. The 50 feet wide Elephant Road is not adjacent to either of the proposed buildings. Therefore, the High Court Division was right in making the Rule absolute.

 

Rajdhani Unnayan Kartripakkha vs Feroz U Haider and others 8 BLC (AD) 145.

440

Chittagong Hill Tracts Regulation 1900

Citation: 10 BLC 524, 10 BLC 524, 6 BLC 436, 8 BLC 453, 9 BLC (AD) 181

Case Year: 1900

Subject: Chittagong Hill Tracts

Delivery Date: 2018-05-06

Chittagong Hill Tracts Regulation 1900

[I of 1900]

 

The Regulation No. 1 of 1900 died a natural death on and from 10-1-1964

 

Regulation No. 1 of 1900 is a dead law and all laws which are in force in Bangladesh are equally applicable to the Hill Districts of Chittagong and in order to give benefit of those laws to the inhabitants of those areas it is high time for the Executive Organ of the State to take necessary steps for setting up of Civil and Criminal Courts as per provisions of Civil Procedure Code, 1908 and Criminal Procedure Code 1898 forthwith and apply all other laws of the country to that area without any let or hindrance.

 

Rangafnati Food Products Ltd vs Commissioner of Customs and others 10 BLC 524.

 

Regulation No. 4(1) (2)

 

From a cursory view of the Memorandum of Association of the petitioner company namely, Article Nos. 1, 2, 3 and 9-14 it appears that the company is authorised to carry on its economic activity throughout Bangladesh and also in various countries and therefore it appears that admittedly at least for the time being they are carrying on business throughout Bangladesh and beyond the territory of the hill districts. Therefore, the VAT Act and the Income Tax Act, in any view of the matter, are applicable to the petitioner company.

 

Rangamati Food Products Ltd vs Commissioner of Customs and others 10 BLC 524.

 

Regulation No. 4(2)

 

It appears that the Executive Authority of the then Government of East Bengal was conscious that after coming into force of the III Part of the Government of India Act, 1935 Regulation 1 of 1900 lost its force and died its natural death and henceforth no law will be made applicable by publication of gazette notification in the official gazette pursuant to the authority vested in the Governor by Regulation 4(2) of the Regulation 1 of 1900 and that position continued until 10th of January, 1964 when the Constitution (First Amendment) Act 1964, came into force. Therefore, on and from 10th January 1964, the Chittagong Hill Tracts were excluded from the definition of Special and Excluded Areas, in other words, from the "Tribal Areas" within the meaning of Article 242(2) of 1962 Constitution.

 

Rangamati Food Products Ltd vs Commissioner of Customs and others 10 BLC 524.

 

Regulation 4(2)

 

The moot point is whether notwithstanding the provision of the Chittagong Hill Tracts Regulation, 1900 the Land Appeal Board Act, 1989 and the rules made there under shall apply to Chittagong Hill Tracts or not. As the Chittagong Hill Tracts Regulation, 1900 has got no special status or sanctity which can be subject to any law passed by the Parliament. It is a territory like any other territory of Bangladesh. The existence of Chittagong Hill Tracts Regulation, 1900 is like any other law of the country and subject to law passed by the Parliament. Section 3 of the Land Appeal Board Act, 1989 provides that the provisions of the Act and the rules made there under will prevail over any existing law and therefore, in case of any conflict the provisions of the Act will prevail. The Constitution of Bangladesh is of unitary type providing no special status to any territory including Chittagong Hill Tracts and hence the law of Bangladesh is applicable to Chittagong Hill Tracts also. Hence, the respondent 1, Land Appeal Board, has jurisdiction to hear the appeal against or reverse the judgment and order passed by the Commissioner, Chittagong Division in respect of khas land of the Chittagong Hill Tracts in accordance with the provision of Land Appeal Board Act, 1989 and the rules framed there under notwithstanding with the provision of the Chittagong Hill Tracts Regulation, 1900.

 

Bikram Kishore Chakma vs Member, Land Appeal Board 6 BLC 436.

 

Regulation 17(3)

 

The Land Appeal Board has no jurisdiction to hear appeal/revision in respect of matters arising out of judgment and order passed by the Deputy Commissioner and Divisional Commissioner in Civil suits and the power of revision lies with the Government. But the Government by specific order may delegate the power to the Land Appeal Board under section 5 of the Land Appeal Board Act, 1989.

 

Abu Taker (Md) and others vs Land Appeal Board and others 8 BLC 453.

 

Regulation 48

 

The law regarding succession to the post of the Chief of Mong Circle and the customs, traditions, usages and the recommendations by the Deputy Commissioner, three members of the Parliament from Hill Districts, Chairmen and headmen of the Hill District in consonance to the Chittagong Hill Tracts Regulation, there is no illegality in the impugned judgment and order of the High Court Division.

 

Rajkumari Llnika Devi vs Bangladesh & others 9 BLC (AD) 181.

441

Chittagong Port Authority Employees Service Regulation, 1991

Citation: 6 BLC 525

Case Year: 1991

Subject: Chittagong Port Authority Employees Service

Delivery Date: 2018-05-06

Chittagong Port Authority

Employees Service Regulation, 1991

 

Rules 14, 15 & 57

 

It appears from Probidhan 57 that the Chittagong Port Authority has been empowered to take decisions subject to post approval from the Ministry of Ports and Shipping to meet the urgency. The decision was taken on 3-9-94 by the Chittagong Port Authority at the initiation of the Security Division but the decision was general and was applicable to all departments of the said Authority. Thus the petitioners' case also comes under the said decision dated 3-9-94 and they can get their relief through this decision.

 

Abu Taker Mizi (Md) and others vs Bangladesh, and others 6 BLC 525.

442

Chittagong University Act, 1973

Citation: 4BLT (AD)-66

Subject: Chittagong University

Delivery Date: 1970-01-01

 

 

Chittagong University Act, 1973

A disciplinary action for expulsion of a student for ever from the college — respondents were expelled for ever from the Chittagong Medical College by the Notification issued by the Principal of the college. This drastic action was taken following a tragic incident, at the doctors cafeteria of the Chittagong Medical College Hospital on 18.10.93. Some persons entered into the cafeteria with firearms and opened fire indiscriminately, as a result of which a doctor and two outsiders were killed and several doctors and students were seriously injured—the disciplinary committee held the respondents guilty for the occurrence and decided to expel them from the college for good. All the members of the committee and the Academic Council unanimously approved the decisions taken by the Disciplinary Committee—High Court Division held that the respondents having not been given any opportunity to show cause to explain the allegations made against them, there has been a violation of the principle of natural justice in awarding the punishment of expulsion forever and as such the said punishment cannot be legally sustained—Held : We have considered the whole situation, particularly the concern of the college authorities to maintain congenial atmosphere in the college and hospital for which the impugned action was said to be taken. Even so, we have not been able to persuade ourselves to agree that the respondents have been fairly treated to the authority before imposing. So to say, a kind of death sentence as far as their educational career is concerned—we find no reason to interfere with the impugned judgment and order passed by the High Court Division.

M. College & Anr Vs. Shahrayar Murshed 4BLT (AD)-66.

 

443

Cinematograph Act, 1918

Citation: 7 BLC (AD) 103

Case Year: 1918

Subject: Cinematograph

Delivery Date: 2018-05-06

Cinematograph Act, 1918

[II of 1918]

 

Section 5

 

The licensing authority namely, the Deputy Commissioner even on the so-called solemn cause of earning revenue is not authorized either by the provision of Cinematograph Act or by the Rules of 1972 or by any other law to take over the management of the cinema Hall in question upon dislodging the writ-petitioner-appellant, who was exhibiting motion picture film in the Cinema Hall on taking licence from the authority for a pretty long time on the basis of an agreement for sale entered into between the appellant and the respondent No. 2. There is no material on record that the' so-called dispute relating to ownership of the Cinema Hall was of such nature giving rise to a genuine apprehension of breach of peace and that being absent there is no occasion for the licensing authority to place management of the Cinema Hall with the respondent No. 2, who had not approached the licensing authority to exhibit motion picture film in the Cinema Hall from 1988.

 

Nurul Islam Barker (Md) vs Deputy Commissioner, Gazipur and others 7 BLC (AD) 103.

444

Cinematograph Rules, 1972

Citation: 10 BLC (AD) 12

Case Year: 1972

Subject: Cinematograph

Delivery Date: 2018-05-06

Cinematograph Rules, 1972

 

Rule 22

 

Though under Rule 22 of the Cinematograph Rules, 1972 a licence may: be revoked or suspended at any time but before cancelling the licence, reason for cancellation must be recorded but, in the instant case, the reason assigned for cancellation is a dispute between landlord of the plaintiff and his co-sharers over titie in the suit premises. No reason has been assigned by the authority about any violation of the rules or breach of any condition as has been found by the High Court Division.

 

Government of the People's Republic of Bangladesh and others vs Shamir Ghosh 10 BLC (AD) 12.

445

Civil Rules And Orders

Citation: 18 BLD (AD) 251

Subject: Civil Rules And Orders

Delivery Date: 1970-01-01

 

 

 

Civil Rules And Orders (Volume I Part-I, Chapter-I)

 

Rule—13(1)

Rule 13(1) of the Civil Rules and Orders provides that a daily cause list’ in prescribed From No. (M) 2 shall be posted in some conspicuous part in every court-house for the information of the parties, their pleaders and the public. Cases and appeals shall be shown in the order in which they appear in the dairy.

Note to the said Rule provides that judgments ready for delivery should be notified in the ‘cause list for the day.

Md. Samon Miah Vs. Falani Be gum and others, 18 BLD (AD) 251.

 

446

Co-Operative Societies Ordinance, 1984

Citation: 21 BLD (HCD) 568, 13 BLD(AD)103, 17 BLD (HCD) 538, 19 BLD(HCD)340, 18 BLD (HCD) 277, 14 BLD (AD) 52, 17 BLD (HCD) 189, 17 BLD (AD) 293

Subject: Co-Operative Societies

Delivery Date: 1970-01-01

 

 

 

 

Co-Operative Societies Ordinance, 1984

(Ordinance No. 1 Of 1985)

 

Sections—18, 22(1) and 23(1)

Co-operative Societies Rules, 1987

Rules 16 to 25, 38 and 57

The power of the Government to extend the period under the proviso to section 23(1) of the Co-operative Societies Ordinance 1984 does not restrict or qualify the provision of section 23(1) as to holding of election to constitute a regular Managing Committee.

Co-operative society is governed by the duty elected Managing Committee under the law—appointed Managing Committee is no substitute for a regular Managing Committee—it is merely a stop-gap arrangement.

Muhammad Zakir Hussain v. Bangladesh and others, 21 BLD (HCD) 568.

 

Section—19(2)

It cannot be said that barring a thrice- elected member of the Managing Committee to stand for election again till the lapse of 2 years since his last term expired, is an unreasonable restriction.

Md. Abdus Sattar Vs. Bangladesh and others, 13 BLD(AD)103

 

Section—86

There is nothing in section 86 of the Ordinance to indicate that a past officer of a cooperative society cannot raise a dispute as regards his dismissal from service or as to any matter connected with his service, In that view of the matter, the dispute case filed by a past officer of the Insurance Company against his dismissal cannot be said to have been entertained by the Registrar without any lawful authority. A dispute, even if it relates to or touches a departmental disciplinary proceeding of a co-operative society, can be entertained by the Registrar for arbitration.

Mr. Md. Giasuddin Vs. Bangladesh, 17 BLD (HCD) 538.

 

Sections—86, 87, 134(3)

Limitation Act, 1908, Section—5

The prescribed period of limitation for filing appeal from an order passed under section 86 and 87 of the Co-operative Societies Ordinance, 1984 is one month from the date of knowledge of the decisions. Section 134(3) provides that section 5 of the Limitation Act shall not be made applicable to an appeal filed under Section 134(1). There is no reason to hold that because the petitioner could not file the appeal within prescribed period of limitation within 30 days due to devastating cyclone the petition ought to have been accepted by the learned District Judge on condonation of delay and the learned District Judge dis. missed the case illegally holding that the appeal before the appellate authority was time barred. When the Ordinance, a special enactment, excludes the application of section 5 of the Limitation Act for condonation of delay to an appeal it cannot be hold that the learned District Judge failed to exercise his jurisdiction vested under section 134(5) of the Ordinance in not condoning delay in filing the appeal. Where a special enactment expressly provides that for filing an appeal beyond period prescribed provision of Section 5 of the Limitation Act shall not be made applicable the appellate authority before whom the appeal lies has no power to condone delay by applying provision of section 5 of the Limitation Act for accepting the appeal.

Afazuddin and others Vs. District Judge, Cox’s Bazar and others, 19 BLD(HCD)340.

 

 

Sections—86 and 87

Co-operative Societies Rules, 1987, Rules—133, 134 and 135

Any dispute touching the business or affairs of a co-operative society is to be resolved in a manner as laid down in the provisions of the Ordinance and the Rules framed thereunder. In the absence of any application by any party to the arbitration for the dispute being withdrawn, the withdrawal of the dispute by the impugned memo on the direction from the concerned ministry is illegal and not sustainable in law.

Abdul Malek Vs. District Co-operative Officer, Cox’s Bazar and others, 18 BLD (HCD) 277

 

Section—134 and the Third Schedule

Section 134 and the Third Schedule to the Ordinance do not provide .for any appeal against an order of the District Co-Operative Officer under Sections 18 (3) and 18 (4) of the Ordinance. In such state of affairs, it is procedurally absurd to ask the Appellant to go to a higher appellate forum to obtain a verdict on the jurisdictional error of the first appellate authority.

Nani Gopal Barman Vs. Bangladesh and Others, 14 BLD (AD) 52.

 

Section—134(5)

The District Judge has been empowered to entertain and hear an application at the instance of an aggrieved person against the decision of the appellate authority. The District Judge has thus been vested, with the power to revise the decision of the appellate authority on examination of the records of the proceedings of the dispute case and the appeal case if he finds that the appellate authority acted illegally or with material irregularity in deciding the appeal, causing miscarriage of justice. Under Section 134(5) there is hardly any scope for examination of witnesses or for production of fresh documents before the District Judge. The learned Additional District Judge acted illegally and with material irregularity in exercise of his jurisdiction in setting aside the order of the appellate authority on fresh evidence adduced before him instead of deciding the case on the basis of materials already placed before the appellate authority.

Producers Milk Co-operative Union Ltd. Vs Md. La! Miah & ors, 17 BLD (HCD) 189.

 

Section—134(5)

Under Section 134(5) of the Ordinance the District Judge has been vested with the power to review the decision of the appellate authority. He is to see after examination of the records of the dispute case and appeal case whether the appellate authority acted illegally or with material irregularity in deciding the appeal causing miscarriage of justice. In a proceeding of this nature there is hardly any scope for examination of witnesses or production of documents afresh before him.

Md. Lal Mia Vs. Bangladesh Milk Producer’s Co-operative Union Ltd., 17 BLD (AD) 293

 

447

Companies Act, 1913

Citation: 10 BLC (AD) 83, 7 BLC (AD) 38, 6 BLC 479, 9 BLC (AD) 241

Case Year: 1913

Subject: Companies Act

Delivery Date: 2018-05-06

Companies Act, 1913

[VII of 1913]

 

Sections 34(3)

 

Since the transfer of 1,25,000 shares by the respondents to the Eastern Federal Union Insurance Co. Ltd. having not taken effect the respondents are the legal holders of the said number of shares. It appears that 1,25,000 shares were lying in the name of the respondent company as on December, 1972. Therefore, though the Eastern Federal Union Insurance Company was nationalised but the aforementioned number of shares not having been transferred in its name the title to the shares remained with the respondents.

 

Bangladesh Jute Mills Corporation vs Shilpa Pratisthan Ltd and others 10 BLC (AD) 83.

 

Section 38

 

In the absence of any definite statement from the respondent about the delivery of the share certificate and in view of the documents on record admitting that the share certificate was not delivered to the company or to respondent No. 2, it cannot be accepted that the share certificate was in fact handed over to the company or to respondent No. 2. The application for rectification of the share of the respondent was rightly allowed by the company Judge deciding it oh factual determination.

 

Abu Taker vs Nur Muhammad and others 7 BLC (AD) 38.

 

Section 193

 

The direction given ;by the Registrar to the petitioner to go to the Court does not come within the power of the Registrar as- contemplated under section 193 of the Companies Act. It is a right 0f the members of public to inspect the documents and obtain certified copies from the office of, the Registrar and such right :cannot be held back on the ground that , ; the Registrar has ; not accepted/approved the returns filed with the. Registrar.

 

City Bank Limited vs Registrar, Joint Stock Companies and others 6 BLC 479.

 

Section 282

 

A Managing Director or an employee of a private limited company registered under the Companies Act, 1913 cannot be said to be a public servant within the meaning of section 2(b) of the Criminal Law Amendment Act only because the firm was registered under the Companies Act to start functioning.

 

Khurshid Alam vs Azizur Rahman and others 9 BLC (AD) 241.

448

Companies Act, 1994

Citation: 10 BLC 502, 7 BLC 150, 9 BLC 498, 9 BLC 518, 9 BLC 562, 10 BLC 313, 6 BLC 747, 6 BLC 173, 7 BLC 458, 10 BLC 487, 10 BLC 277, 9 BLC 291, 9 BLC 486, 7 BLC 107, 6 BLC 748, 7 BLC 248, 7 BLC 443, 10 BLC (AD) 131, 10 BLC 548, 6 BLC 307

Case Year: 1994

Subject: Companies Act

Delivery Date: 2018-05-06

Companies Act, 1994

 [XVIII of 1994]

 

Sections 2(m) and 91(i)(a)

 

The peti­tioner's status as Managing Director in respondent No. 5, RFC Limited is clearly different from the definition of Managing Director as enunciated in section 2(m) of the Companies Act/1994. Although the petitioner by virtue of Clause 76(B)(3) of the Articles of Association of RFC Ltd has voting right in the Board of Director nevertheless .this does not make him a director of the Company as defined, in section 91(i)(a) of the Companies Act, 1994 for him to come under the definition of Managing Directors as defined in section 2(m) of the Companies Act, 1994. Hence the Company Law is not applicable in respect of the petitioner.

 

Abdus Sabur (Md) vs Rural Electrification Board 10 BLC 502.

 

Sections 3 and 43

 

The Order XI, rule 2 of the Code of Civil Procedure applies only in the case of a suit. The proceeding under section 43 of the Companies Act, 1994 is a special proceeding under a statutory jurisdiction and is not a proceeding in the nature of a suit' as contemplated under section 9 of the Code of Civil Procedure. Therefore, the provisions of Order XI, rule 2 of the Code of Civil Procedure' has no manner of application in the facts and circumstances of the present case. The Court below has rightly passed the impugned order to the effect that the suit is not barred by any law and the same shall proceed in accordance with the law.

 

Dhaka Stock Exchange Ltd and others vs Motiur Rahman 7 BLC, 150.

 

Sections 12 and 13

 

If the proposed amendment is allowed it would rather destroy the existing business of the company. Thus the High Court Division dedines to confirm the special resolution so far it relates to proposed clause 20 of the Memorandum of Association of the Company.

 

Niloy Motors (Pvt) Ltd vs Registrar, Joint Stock Companies 9 BLC 498.

 

Sections 12 and 13

 

Since the share­holders of the Company unanimously decided to enter into further business which, according to them, can be conveniently and advantageously carried on in the existing circumstances by the Company and that the new business appears to be beneficial to the interest of the share-holders, the application made under the said sections is allowed.

 

Alamgir tiosain vs Registrar of Joint Stock Companies and Firms 9 BLC 518.

 

Sections 14A, 42 and 43—There is no scope to tender a person for Cross-examination by the adversary. Thus, these summons for direction falls to the ground having no legs to stand upon.

 

Maruzzaman Chowdhury and anr vs United Commercial Bank Ltd and others 9 BLC 562.

 

Sections 15 and 16

 

As the petitioner could not file the order dated 15-5-04 of the High Court Division before the Registrar of Joint Stock Companies within the 30 days as stipulated in section 15 of the Companies Act owing to inadvertence and lack of knowledge the application was allowed with a direction to file the certified copy of the order in question before the Registrar within 30. days from date.

 

Patwary.and Sons Flour Mills Ltd vs Registrar of Joint Stock Companies 10 BLC 313.

 

Section 43

 

It appears that the owners of the shares belonging to 'C' category do not have any legal right to transfer1 them to outsiders. Hence, the application under section 43 of the Companies Act, 1994 to rectify the share register is rejected. The circular issued by the Ministry of Finance accords permission only for internal transfer and not for, transfer to outsiders.

 

Golarn Kibria vs Bangladesh Commerce Bank Ltd and others 6 BLC 747.

 

Sections 43

 

The equitable title would pass to the respondents No, 2, tp _4. if the petitioner's success in the suit for specific performance of contract would inevitably result in an order transferring the shares to respondents No. 2 to 4, In, the facts of the instant case, there being certainty that any civil Court would order transfer of the shares in question by granting, specific performance of contract order of rectification cannot be given at this stage. The petitioner would always be at liberty to move the High Cpurt Division under section 43 of the Companies Act, should such necessity arise in the future.

 

Industrial Promotion and Development Company of Bangladesh Ltd vs Meghna PET Industries Ltd W BLC 456.

 

Sections 59 and 60

 

The proposed resolution reducing the paid-up capital is not likely to prejudice the interest of share­holder or its creditors. On the contrary, if such reduction is not confirmed it may mis­represent the paid-up share capital of the company when such special resolution appears to be fair and bonafide and accordingly, the application for confirmation of the reduction of share capital is allowed.

 

Uttara Himghar Limited 6 BLC 173.

 

Sections 81(2) and 85(3)

 

In the facts and circumstances of the present matter, applying the test of impracticability propounded by Lord Maugham in the case of Commissioner, Lucknow Division and also by Banerjee, J. in the case of re Malhati Tea Syndicate Ltd, it has been held that it is impracticable from the reasonable point of view to hold the meetings in accordance with the normal procedure and as such it is incumbent upon the Company Court to invoke its jurisdiction under section 85(3) of the Companies Act, 1994 and accordingly, the delay in holding the AGMs of UCBL for the year, 1998,1999 and 2000 is condoned and the meetings and the elections be conducted under the Chairmanship of Mr KZ Alam, Barrister-at-Law and a Senior Advocate of this Court.

 

Jahangir Alam Khan vs Registrar, Joint Stock Companies and ors 7 BLC 458.

 

Sections 81(2) & 85(3)

 

As there was no willful default on the part of the City Bank and/or its Directors or Managers Officers concerned in not holding the 20th Annual General Meeting within time and to protect the interest of the share holders the application for holding Annual General Meeting after condonation of delay was allowed permitting the Bank to hold it within four months from date excepting the Agenda No. 4 relating to the Election of Directors.

 

Sk Abul Hassan vs City Bank Ltd and others 10 BLC 487.

 

Sections 81(2) and 85(3)

 

In view of the candid submission of the learned Advocate for the petitioner that there is no such allegation against the Annual General Meetings for the years '1997 onwards, it would not be proper to allow this petition and to hold meetings for the years 1987 to 1996. That may put into turmoil the meetings held for the subsequent years, which could create more problems than it would solve.

 

Momtaz Begum vs Trimar and Marlinz Ltd and others 10 BLC 277.

 

Sections 82/183(5)/191(3)(4) & 398-

 

There is no prima facie case against the accused petitioners for the offence alleged to have been committed under sections 82/183/(5)/191(3) (4) of the Companies] Act but the learned Magistrate having framed charge under the aforesaid sections including section 398 of the Companies Act, the allegation of withholding the property of the company or whether the accused petitioners diverted the capital and profit of the company, is a matter to be decided during the trial on adducing evidence which cannot be decided at this stage for which the High Court Division is not inclined to quash the proceeding as a whole inasmuch as charge can be altered at any time before pronouncement of the judgment.

 

MM Siddiq and anr vs Shamima Parveen and anr 9 BLC 291.

 

Section 231(1)

 

Upon a reading of section II of the Privatisation Act, 2000 read with the provisions of Chapter 7 of the Nitimala, it appears that the tender process begun on 8-2-2003 for a divestiture and disposal of the government shareholding, that is, for the sale of 62.50% government-owned shares in the respondent No. 4 company being undertaken in keeping with the said provisions and culminating in the issuance of the Letter of Intent cannot be said to have been vitiated by any illegality.

 

Amin Khan (Md) vs Privatisation Commission and others 9 BLC 486.

 

Section 233

 

A remedy under section 233 can be given only if the directors have acted in the breach of duty or if the company has breached any of its articles or any relevant agreement. Under section 233, the Court can give the relief sought by the applicant or any other relief. The objective of the relief is to negate the impact of the prejudicial or other relevant misconduct on the part of the majority shareholders. It can take any form that is thought to be suitable either by the applicant or by the Court. The most common relief is for the majority to buy out the minority. In appropriate situation, the minority can be ordered to buy out the majority. The respondents 2-5 have failed to provide some information and to provide the books and records of the company in breach of the court's order made on 18-8-1999. Since then, the respondent No. 1 company and its Managing Director, the respondent No. 3, failed to take any further steps in these proceedings until very recently. The respondent Nos. 2-5 have remained in exclusive control over and full knowledge of the company and its affairs for the last 15 years. The respondents' individual and cumulative actions will inevitably lead to actions being taken against the company in respect of unpaid taxes and penalties. Nothing has been paid to the petitioners as dividends or profits of any kind at all during the last 15 years. Section 233 enables a member to obtain a remedy where a company with sufficient profit persistently refuses to pay dividends or the member is excluded from the profit after he is no longer a director. The petitioners do not know anything about the sale of one vessel. If they take over the company, they will have to pursue other actions to recover the vessel or its value. It would be suicidal for the p if liti oners, to get involved in a company that has been misrepresenting its financial situation over (he las! lo years. These are the powerful remans for directing the respondents to buy tht shares of the petitioners.  

 

Hortefa Ahmed atid others us Nnhar Skipping Line-. I united and others 7 BLC 107.

 

Section 241

 

Since the Shams Limited company could newer carry on its business and there is no possibility for Lt to carry on business in future, it will be just and equitable to pass an order for winding up of the companv and the official liquidator shall take up the assets of the company and proceed with liquidator! proceeding in accordance with law.

 

Sayeda Hffque vs Shntns Ltd and others 6 BLC 748.

 

Sections 241 and 242— 

 

To appears from the papers available on record thai the petitioner has hopelessly failed lo make out a case for winding up nl the company. The claim is only Taka nine be and odd as compensation but he has failed to show that the assets of the company are not sufficient to meet his claim and companies substratum is gone. Petitioner also failed to show lhat the respondent company is commercially insolvent or that it has admitted that it is unable to pay. In fact, the petitioner has admitted that ihe company is it tunning company. An application under seciion 241 of the Companies Act is a very serious matter and it amounts to killing of a company and thus it liable to be  rejected- 

 

Mohiul Islam vs  Century Properties Development Ltd  7 BLC 248.

 

Section 241(v)

 

Petitioner not being a money lender or a financial institution is not legally permitted to pay loan tci any one for deriving interest- On the other land, the respondent being a. company and noi a financial institution is also not legally permitted to take any loan and pay interest IP any private individual. Under the Company law if money is required by the Company it may take it by way of issuing debenture and pay interest, etc. Jl appears that there exist bonafide dispute relating to lite existence of (he debl anJ the Amount of debt and Eo determines the same winding up proceeding is not available to Ihe petitioner.

 

Tarasrttia-e-fahaa, Pulitishfi Monthly Fullkuri us Paper Converting Packaging Ltd and others 7 BLC 443.

 

Sections 241, 242 and 331

 

The contention that decree obtained by the respondent No. l was not capable to execution and the process of realisation of the debt has become barred by law and 33 such order of winding up and liquidation of the company was not legally maintainable is of no substance since no such contention was taken before the High Court Division nor any particulars has been placed before the Appellate Division to substantiate the aforesaid contention.

 

Dockyard and Engineers Ltd vs Bangladesh Shilpa Rin Sangstha and others 10 BLC (AD) 131.

 

Sections 241, 243 and 253

 

The applicant has paid, by various instalments, the total amount of Taka 12,00,000, which was the total claim of the petitioner in its winding-up application. The dues of the petitioner Company having been paid and the possession of the properties of the Company in liquidation having been handed back to the applicant, Managing Director of respondent Company, nothing further remains to be done. Accordingly, the application is allowed. The order of the High Court Division dated 7-7-2004 winding up the Company and appointing a receiver is hereby recalled. The Company is reinstated to its original position and the application for winding up is finally disposed of.

 

Mofizur Rahman (Md) and mother vs Spectacles Frame Manufacturing Industries Ltd and others 10 BLC 548.

 

Sections  247 and 248

 

As the petitioners have not made out any case that if injunction is not granted the petitioners will suffer irreparably, the respondent Nos. 1, 4 and 8 are not liable to be restrained from according permission and selling the lands and flats to the allothees.

 

Salim Akhter Khan BMA and another vs Advanced Development Technologies Ltd & others 6 BLC 307.

 

449

Constitution of Pakistan, 1962

Citation: 10 BLC 524

Case Year: 1962

Subject: Constitution of Pakistan

Delivery Date: 2018-05-07

Constitution of Pakistan, 1962

 

Article 242(2)

 

It appears that the Executive Authority of the then Government of East Bengal was conscious that after coming into force of the III Part of the Government of India Act, 1935 Regulation 1 of 1900 lost its force and died its natural death and henceforth no law will be made applicable by publication of gazette notification in the official gazette pursuant to the authority vested in the Governor by Regulation 4(2) of the Regulation 1 of 1900 and that position continued until 10th of January, 1964 when the Constitution (First Amendment) Act 1964, came into force. Therefore, on and from 10th January 1964, the Chittagong Hill Tracts were excluded from the definition of Special and Excluded Areas, in other words, from the "Tribal Areas" within the meaning of Article 242(2) of 1962 Constitution. Therefore, on and from 10-1-1964 the erstwhile Chittagong Hill Tracts ceased to be tribal area as defined in Article 242 of the Constitution which got its recognition by Regulation No. 1 of 1900 and retained its position until 10-1-1964 in this part of the Indian sub-continent and even after partition of India in 1947 and from 10-1-1964 Hill Districts ceased to be a tribal area even in the Pakistan time.

 

Rangamati Food Products Ltd vs Commissioner of Customs 10 BLC 524.

450

Contempt of Court Act, 1926

Citation: 8 BLC 204, 9 BLC 381, 8 BLC 733,

Case Year: 1926

Subject: Contempt of Court

Delivery Date: 2018-05-07

Contempt of Court Act, 1926

[XII of 1926]

 

Section 2

 

Since the contemners have been violating and disregarding the judgment of the High Court Division there is no other alternative but to find them guilty of contempt of order of the High Court Division. The series of acts and misdeeds have'exposed the evil design of both the sets of contemners and they constantly flouted the authority of the High Court Division and did not obey its direction in the garb of considering the petitioner's case by the DPC on the basis of false and fabricated adverse remarks.

 

Accordingly, all the contemners are found guilty of Contempt of Court for disobeying the order dated 12-5-1999 of the High Court Division passed in Writ Petition No. 1152 of 1998 and they are convicted and sentenced to suffer simple imprisonment for 6 (six) months each and to pay a fine of taka two thousand each to the petitioner from their own wallet within 4 (four) weeks from date, in default, to suffer simple imprisonment for a further period of 1 (one) month each. For ends of justice and preservation of the rule of law, the contemners are directed to promote the petitioner to the post of Superintendent Engineer immediately.

 

Faroque Hossain (Md) vs M Iqbal Hossain and ors 8 BLC 204.

 

Section 2

 

Considering the whole matter there still remains some doubt as to the wilful and deliberate violation of the order of the High Court Division having definite knowledge of the same before signing of the contract and in absence of conclusive proof thereof in a quasi criminal jurisdiction it is unsafe to punish the respondents making them liable for contempt of court.

 

Shemsmon Pvt Ltd vs Bangladesh and others 9 BLC 381.

 

Section 3

 

Taking into consideration of the facts and circumstances of the case the High Court Division has held that the aspersions, if any, allegedly being made against the Judges of the Appellate Division of the Supreme Court of Bangladesh, High Court Division lacks in the jurisdiction and competence to entertain any application for drawing proceeding of contempt of Court.

 

Sudhangshu Shekhor Haider vs Moulana Delowar Hossain Sayedee and others 8 BLC 733.

 

Section 3

 

On the basis of unspecified, indefinite and vague statement, not supported by any material whatsoever, no proceeding should be drawn up against iany citizen for committing contempt of Court.

 

Sudhangshu Shekhor Haider vs Moulana Delowar Hossain Sayedee and others 8 BLC 733.

451

Contract Act, 1872

Citation: 6 BLC (AD) 67, 7 BLC (AD) 73, Section 15, 8 BLC (AD) 11, 8 BLC 391, 10 BLC 449, 8 BLC 337, 8 BLC 589, 10 BLC (AD) 189, 8 BLC (AD) 7, 6 BLC 396, 7 BLC 16

Case Year: 1872

Subject: Contract Act

Delivery Date: 2018-05-07

Contract Act, 1872

[IX of 1872]

 

Sections 3 and 4

 

The tenderer acquired no vested right of a property merely because his tender for that property had not been rejected and his earnest money had not been refunded by the Corporation. As there was no definite communication of acceptance of tender by the Corporation no vested right was acquired by the plaintiff.

 

Sahana Chowdhury (Widow) and others vs Md Ibrahim Khan and another 6 BLC (AD) 67.

 

Sections 3,4 and 8

 

In the instant case, by accepting the offer of defendant No. 3 by  defendant  No.   1 and   delivery  of possession of a part of the suit holding there was a concluded contract between defendant No, 1 and defendant No. 3 and subsequent amendment of the Bangladesh Abandoned Property (Building in Urban Areas) Rules, 1972 by sub-rule (4A) could not take away the vested right or be detrimental to the right of defendant No. 3 but the Courts below committed an error of law in holding that, the auction sale was not complete and the plaintiff had pre-emptory right to make offer of the highest bid made in the auction on the strength of subsequent amendment of the Rules by inserting sub-rule (4A) in Rule 10 of the Bangladesh Abandoned Property (Building in Urban Areas) Rules, 1972.

 

United Commercial Bank Ltd and anr vs Rahimafrooz Batteries Ltd and ors 7 BLC (AD) 73.

 

Section 15

 

The writ petitioner of his own filed an application to the manage­ment seeking reemployment upon giving an undertaking that he would realise the outstanding dues from BK Shaha and that in case of his failure the outstanding dues would be realisable from his salary and service benefits and that the letters impugned in the writ petition being the follow-up of 'the representation, the undertaking that was obtained from the writ petitioner can in no way be said that it was obtained by the authority under coercion and duress and while he was in distress situation or that'it was issued without lawful authority.

 

Abdul Majid (Md) vs Bangladesh Chemical Industries Corporation 9 BLC (AD) 37.

 

Section 17-Fraud

 

The facts as noticed by the High Court Division are sufficient to hold that the nature of transactions among the defendants as fraudulent and collusive. Fraud cannot be directly proved, it has to be inferred from the conduct of the parties.

 

Abdur Rashid & Bhiila and others vs Moulana Mobaswar Ahmed and others 8 BLC (AD) 11.

 

Section 17

 

Credit documents had been accepted by the Petitioner Bank after examining the same without any objection within a period of one year/six months. Opposite party Bank as Negotiating effected payment to beneficiary opposite party Company. Plea of fraud had not been adopted by Petitioner Bank at the time of acceptance of Letter of Credit. Petitioner Bank slept and slept and woke up at a very late stage. Petitioner Bank after acceptance of Credit documents cannot turn back and cannot decline to reimburse payment given to beneficiary opposite party Company by opposite party Bank on the plea of fraud. It is observed that relief by way of injunction is available to that litigant who is prompt and vigilant and not to him who is indolent and sleep and sleep over his right. Petitioner Bank slepts and slepts and then lately rose seeking relief in bringing forth complaint of fraud. It was too late in the day to wake up and rise in ventilating grievances as to genuineness of, credit documents.

 

National Credit and Commerce Bank Limited vs Prime Bank Limited and ors 8 BLC 391.

 

Section 17

 

Non-inclusion of a party cannot be construed as a fraud and ex parts decree of a court against a party not impleaded in the suit shall not be turned down on the ground of fraud.

 

Rahmat-e-Alam Islam Mission and Etimkhana (Secretary) vs Md Shafiqul Huq and ors 10 BLC 449.

 

Sections 17 and 18

 

In this case, the plaintiff No. 1 claimed that their 531 bales of jute were damaged but the surveyor found damage to 435 bales of jute. The defendants may not agree with the claim of the plaintiffs so far 531 bales of jute is concerned and may rely on the survey report so far 435 bales is concerned. But it cannot on that ground repudiate the claim of the plaintiff. This discrepancy in respect of jute damaged is a matter of opinion and in circumstances vary and do not at all substantiate a case of misrepresentation of fact as envisaged under section 18 of the Contract Act or do not bring it within the ambit of section 17 of the Contract Act or even within clause 13 of the Policy Document.

 

Fibre Deals Ltd vs Sadharan Bima Corporation and others 8 BLC 337.

 

Section 28

 

In fact, the liability of the guarantor or surety is immediate and this need not be deferred until the creditor exhausts his remedies against the principal debtor. In the absence of any special reason, the surety cannot plead that the creditor must first initiate action against the debtor before proceeding against the surety or the guarantor on the ground that the debtor is solvent enough to repay the debt.

 

IFIC Bank Ltd vs Chittagong Steel Mills Ltd and another 8 BLC 589.

 

Section 40

 

It appears that the defendant failed to deliver the goods to the plaintiff in spite of repeated readiness expressed by the plaintiff to lift the goods in payment of balance money according to the contract. But due to the default of the defendant the plaintiff could not succeed. In case the seller insists on delivery to the buyer a quantity of goods less than he contracted to sell, the buyer has got the right to reject them and claim refund of the money paid by him to the seller. In the instant case, the seller failed to show that he was ready to deliver to the buyer the quantity/quality of the goods in good condition contracted to be delivered and, in fact, there is default by the seller and, in such view of the matter, there is no legal reason to authorise the seller to forfeit the good money paid by the buyer and, as such, the action of the seller in the present case in forfeiting the money of the plaintiff cannot stand in the eye of law.

 

National Bank Ltd vs Pragati Industries Ltd 10 BLC (AD) 189.

 

Section 56—Frustration of Contract—

 

Considering the facts and circumstances of the case and evidence on record it appears that the contract was ultimately frustrated by the action of the plaintiff and as such no decree can be passed as has been rightly found by the High .Court Division.

 

Sooraya Rahman vs Hajee Md Elias and others 8 BLC (AD) 7.

 

Section 70

 

In the suit the plaintiff ST International challenged the order dated 20-6-99 of the government terminating the lease directing to pay one crore and odd as dues for Meghna-Gomati bridge on the ground of hartal, flood and transport strikes for which it could not enjoy the benefit of lease and considering the sufferings of the plaintiff was allowed to collect tolls of the said bridge for a further period of 50 days upto 9-6-99, after the expiry of the lease on 19-4-99, without making any payment to the government and thereafter plaintiff prayed for a further remission of revenue and. its prayer was under the active consideration of the Hon'ble Minister for Communications but defendant No. 1 in'violation of the recommendations of the Minister of Communications cancelled the plaintiff's lease by his order dated 20-6-99. and illegally terminated the lease directing to pay the dues aforesaid.

 

Since the plaintiff continued to enjoy the privilege of collecting of tolls even after 9-6-99, defendant No. 1 committed no illegality in claiming government du6s from the plaintiff by the impugned notice. In a democratic society the government functionaries are under constitutional and' moral obligations to mete but equal treatment to all citizens irrespective of social standing and political affiliations. Granting of revenue holiday to the plaintiff involving crore of takas without any justifiable reason is a classic example of wanton discrimination and mis-use of discretion in managing the affairs of the State. The public functionaries must be cautious in doling out charities by way of granting revenue holiday to individuals or establishments against public interest.

 

Accordingly, the Deputy Commis­sioner, Munshiganj was directed to take prompt legal steps against the plaintiff for realising damages under the provisions of PDR Act from 9-6-99 till the plaintiff vacates and makes over possession of the Meghna-Gomati Bridges to the Government.

 

ST International vs Executive Engineer, Roads & Highways, Road Division & ors 6 BLC 396.

 

Sections 151 and 152

 

Section 151 of the Contract'Act provides that the bailee is required to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own: goods while section 152 of the Act provides that bailee, in the absence of special contract, is not responsible for the loss, destruction or deterioration of the thing,bailed, if he has taken the amount of care of it described in section 151. In the instant case, the plaintiff bank duly took reasonable and proper care for the protection and preservation of the pledged jute when the looting of the pledged jute took place beyond the control and comprehension of the plaintiff and as such the plaintiff cannot be held liable for the loss of the pledged jute.

 

Reliable Jute Traders and another vs Sonali Bank and others 7 BLC 16.

452

Customs Act, 1969

Citation: 9 BLC 550, 9 BLC 460, 9 BLC 398, 8 BLC (AD) 87, 9 BLC 398, 9 BLC (AD) 77, 10 BLC 553, 6 BLC 357, 7 BLC 193, 9 BLC 34, 9 BLC 59, 9 BLC 84, 9 BLC 664, 10 BLC 123, 7 BLC 524, 7 BLC 193, 6 BLC 379, 8 BLC (AD) 59, 9 BLC (AD) 127, 9 BLC 398, 6 BLC 168, 6 BLC

Case Year: 1969

Subject: Customs Act, 1969

Delivery Date: 2018-05-07

Customs Act, 1969

[IV of 1969]

 

Sections 13, 15 and 16

 

Admittedly, the petitioner was granted two licences in the years 1984 and 1985 respectively prior to the policy decision of the government and there has been no allegation that the petitioner has breached any condition of the licence, and that the licences have been renewed from time to time on payment of fees. The respondent has not taken any action pursuant to the provision of section 13 of the Customs Act. The petitioner had not been given any opportunity of being heard, no notice was served upon the petitioner asking to show cause as to why the items contained in Annexure K should not be excluded from the licence and hence there has been violation of the principles of natural justice. Before issuing the impugned order which purported to have transgressed the right of the petitioner to carry on lawful trade and business the petitioner was not heard. The policy decision of the government has got no binding force so far it relates to restricting the terms and conditions of the licence.

 

Portland Services Ltd vs Second Secretary, Customs (Import and Bond) and others 9 BLC 550.

 

Sections 15 and 16

 

The Customs Authority is empowered to detain any goods confiscated for breach of any prohibition and restriction of the provisions of sections 15 and 16 of the Customs Act and the Customs Authority is not required to take prior permission from the Tribunal for confiscation and sale of the goods from their custody.

 

Omar Sharif Khan (Md) vs State 9 BLC 460.

 

Sections 18, 19, 30 and 30A

 

In fact, upon reading the language of section 30A it appears that the rate of duty is to be ascertained by taking into account any duty imposed under section 18 or any exemption or concession of duty granted under the Act. Thus, in the present cases, considering the speciality of the facts and circumstances sections 30 or 30A should be read independent of section 19 and accordingly, any exemption granted under section 19 should not be affected by section 30 or 30A of the Act or the date of submission of Bills of Entry.

 

Cab Express (BD) Ltd vs Commissioner of Customs and others 9 BLC 398.

 

Sections 19, 25(7), 25A & 30A

 

The importers having acted on the promise made by the appellants under section 25A of the Act to accept the price determined by the Government appointed inspectors the appellants cannot go back on that promise as it was meant to be binding on them. Section 30A of the Customs Act, 1969 came into effect from 1-7-95 and the present consignments were imported subsequent to that date. Both the section 30A and section 25A, came into operation on the same date, that is on 1-7-95 but in section 30A there is nothing to suggest that it excluded the operation of section 25A of the Customs Act. It is noticed that section 25A contained non-obstantive clause at the relevant time like "Notwithstanding any thing contained in any other section of the Act" which means that it included section 30A of the Customs Act. Therefore section 25A would prevail over all other sections including sections 25(7) and 30A of the Customs Act.

 

Commissioner of Customs and others vs Monohar Ali and 26 others 8 BLC (AD) 87.

 

Sections 19, 25A and 25B

 

The petitioners having opened the Letters of Credit, and shipment having been made prior to issuance of the subsequent SRO upon fulfilling all the terms and conditions including the inspections of the vehicles under sections 25A and 25B by the approved PSI agents they have acted in accordance with the conditions of the SRO and, as such, the promisor, i.e. the Government, now cannot fall back and ask for payment of customs duty on any other basis other than SRO No. 56. Under such circumstances it appears that the position of the petitioners in the present cases are as such that the situation has taken place, arising out of promise made under section 19 of the Act, to exempt the imported taxicab from assessing or paying taxes and duties under special circumstances.

 

Cab Express (BD) Ltd vs Commissioner of Customs and others 9 BLC 398.

 

Sections 25 and 30A

 

 In 52 DLR (AD) 49, the Appellate Division held that no vested right accrued even though at the time of opening of the letter of credit there was a notification (SRO) providing for lesser tariff value. In the present cases on previous occasions the Customs Authority made assessment on the basis of invoice value. So, there is no question of acquiring vested right by the respondents merely on the basis of earlier assessment. Further, in view of adding of section 30A in the Customs Act with effect from 1-7-1995 which is long before the opening of the letter of credit in the present cases, the provisions of section 30 have been made applicable to section 25 also and so the position regarding acquiring vested right has also been completely changed. So, in terms of the provisions of sections 25(1) and 30A of the Customs Act, normal value has to be fixed on the imported Hard Board as well as MDF Boards.

 

Commissioner of Customs and anr vs Bangladesh Traders 9 BLC (AD) 77.

 

Sections 25, 30, 30A and 109

 

In view of the position of law as it stands today i.e. after introduction of section 30A in the Customs Act, no one can come before this Court and invoke either the doctrine of vested right or promissory estoppel in the event of an express provision as contained in the Act as there cannot be an estoppel against the law. Therefore, in view of the provisions as contained in the Act the High Court Division arrived at the conclusion that in the instant case the petitioners are liable to pay supplementary duty pursuant to the provisions of SRO No. 45 dated 14-2-2000 and also pursuant to the then provision of section 109 of the Customs Act. The provisions as contained in section 7(1), (2) and (3) of the VAT Act read with the then section 109 of the Customs Act which was in force at the relevant time, it appears that the duty which was prevalent on the date of submission of bill of entry for clearing in-bond goods for home consumption rate of duty is the rate which is prevalent on the date of submission of the bill of entry for ex bond.

 

KY Steel Mills Ltd vs Commissioner, Customs, Excise and VAT and others 10 BLC 553.

 

Section 25(1) (2) and 25 A

 

The importers of goods as petitioners filed the respective writ petition challenging the impugned inflated and fictitious CIF price and CRF Certificate endorsed by PSI Agency violating the Customs Act, Pre-shipment Inspection Order, 1999 and GATT Valuation Agreement and sought relief by way of judicial review of the High Court Division. The respondents having not acted in accordance with law and PSI order and acted in excess of the PSI Agency's power conferred under section 25A of the Customs Act and PSI Order, 1999 and hence these rules are made absolute directing the department to determine the normal value of the goods imported by the respective petitioner in accordance with law ignoring the arbitrary and fictitious CIF value certified by the PSI Agency.

 

Showkat Ali and 15 others vs Commissioner of Customs and others 6 BLC 357.

 

Sections 25(1) (2) & 25A

 

Sub-sections (1) and (2) of section 25 of the Customs Act authorises the department to assess normal price of the goods/import in question in the Rule considering the contemporary commercial price of the goods at the place of origin with notice to the importer or agent to produce any document or paper in support of their invoice value which shall be the basis for ascertainment of -the normal price in the event of cancellation of the CRF certificate.

 

 Nazir Ahmed vs National Board of Revenue and others 7 BLC 193.

 

 Section 25A

 

The petitioner has failed to show that the disputed item came under description of goods mentioned under those HS Codes mentioned on the Letter of Credit. A buyer cannot import commercial items not covered by the relevant Letter of Credit and the HS Code, Similarly, the PSI Agent is not authorised to certify any goods other than those mentioned in the Letter of Credit and HS Code. Accordingly, the petitioner was directed to pay difference amount on normal price for those goods that were not included in HS Code quoted on the Letter of Credit.

 

Amir Hossain (Md) vs Commissioner of Customs and others 9 BLC 34.

 

Section 25A

 

Since the Letter of Credit was Opened during the period when the SRO dated 21-12-95 remained in force containing the item under the Table, the petitioner was bound to comply with the provisios of the said SRO. The argument that the SRO dated 17-6-96 was applied restropectively is of no substance. The petitioner had neither any legitimate expectation nor any vested right in his favour by virtue of SRO dated 4-11-94. The consignment is liable to be assessed on the basis of Tariff value.

 

Sheikh Ahmed vs Commissioner of Customs and others 9 BLC 59.                

 

Section 25A

 

The petitioner without annexing anything to show refusal of the customs authority in respect of release of the goods or assessment thereon and in particular without showing how he was a person aggrieved in respect of his imported goods has obtained an ad-interim order for release. The petitioner did not suffer any actual loss or injuiry for issuance of the SRO No.215 dated 12-12-95 and no writ lies for a threatened injury. As the petitioner was not a "person aggrieved" within the meaning of Article 102 of the Constitution the writ jurisdiction was not available to him. The action of the petitioner was fictitious and abuse of the process of the Court.

 

Al-Nazia Establishment vs Commissioner of Customs and others 9 BLC 84.

 

Section 25A

 

The letters of credit were opened by the petitioners prior to the date of issuance of SRO 156 dated 12-6-1997. Inspection of the goods were done by the Pre-shipment Inspection Agency after 12-6-97 when they lost their authority to inspect the goods as a result of which any inspection done after the date of 12-6-1997 cannot be accepted by the Customs Authority.

 

Rolex Corporation and vrs vs Commissioner of Customs and others 9 BLC 664.

 

Section 25A

 

The goods are inspected prior to withdrawal of the CRF facilities, the PSI agency would have the authority to inspect and certify the goods till the date of withdrawal of such facilities. In the instant case, the goods were inspected on the day when SRO Nos. 149 and 156 were issued. As such, the PSI agency did not lose its authority to inspect the goods since the withdrawal of facilities and inpection was on the same day. Considering such circumstances, a benefit can be given to the petitioners since his goods were inspected on the crucial day not subsequent to the said date and, as such, the imported goods are liable to be assessed under section 25A of the Customs Act on the basis of CRF certificate.

 

Rolex Corporation vs Commissioner of Customs and ors 10 BLC 123.

 

Sections 25A and 33

 

It is now well settled that the rate of customs duty which was prevalent on the date of opening of the letter of credit is leviable oh an imported merchandise and as such the customs authority illegally and without jurisdiction realised customs duties on the basis of the subsequent SRO and hence the petitioners are entitled to get refund of the excess duties realised from the petitioners. The question of limitation of three years will not stand in their way as it does not appear that the petitioners have abandoned their claim at any point of time before coming to the Court. Since the realisation is illegal and in violation of the provision of law the respondents are under a legal duty to refund the same to the petitioners either on the pronouncement of the judgment by the Appellate Division reported in 48 DLR (AD) 199 or even after the demand made by the petitioners pursuant to that judgment. Accordingly, the respondents were directed to refund the excess duties within three months from the date of receipt of the certified copy of the judgment.

 

Mostafa Kamal vs Collector of Customs and others 7 BLC 524.

 

Sections 25A and 193

 

The respondents having not acted in accordance with law and PSI Order and acted in excess of the PSI agency's power conferred under section 25A of the Customs Act and PSI Order, 1999 application under Article 102 of the Constitution is maintainable in spite of the alternative forum as prescribed by section 193 of the Customs Act.

 

Nazir Ahmed vs National Board of Revenue and others 7 BLC 193.

 

Sections 25A, 193C & 196

 

Petitioner challenged the impugned order dated 20-8-97 imposing development surcharge on the imported consignment and the refusal to entertain clean reports of findings by the respondents should not be declared to be without lawful authority and are of no legal effect and for a direction to levy and collect customs duties and taxes in respect of the imported goods on the basis of CRF certificate issued by Bureau Veritas, an approved pre-shipment inspection agency .excluding development surcharge. If the CRF could be cancelled as the previous , price is higher in that event the provisions of section 25 A and Rules framed thereunder would be frustrated. Unless any infirmity required for cancellation of the CRF is available, merely ithat the CRF is lower than the previous price, could not be a cause for cancellation of CRF. In the instant case, in the absence of arty other material contemplated in section 25A of the Customs Act and Rules made thereunder for the purpose of cancellation of CRF the impugned order has been passed without lawful authority.

 

Moonshine Traders vs Commissioner of Customs and others 6 BLC 379.

 

Sections 30 and 30A

 

The provisions of Customs Act as was on the day. Bill of Entry submitted the provisions of the said Act legally applicable in petitioner's case or,:in other words,,the provisions of section 30 and 30A of the Customs Act as stood on the day Bill of Entry was submitted is applicable in case of Supplementary Duty leviable under the VAT Act and realisable in respect of the goods imported by the petitioner.

 

GM Abdus Sattar vs Ministry of Finance, People's Republic of Bangladesh, and others 8 BLC (AD) 59.

 

Section 33

 

The correct view of law is that there is no such provision in section 33 or in any of the sections of the Customs Act that if excess payment of customs duties is made at the time of releasing the goods it had to be made on protest and section 33 contemplates that if any payment is made due to indavertent error or misconstruction of law, the importer is entitled to claim the refund of the said amount within 6 (six) months from the date of payment and in this case the payment was made on 27-2-2000 and both the; applications were filed by the respondent No.l within time and thus the Tribunal, taking a  orrect view: Of law and facts, rightly set aside the order of the Commissioner of Customs denying refund of excess payment of customs duties.

 

Commissioner of Customs vs MMM Electrical Industry Ltd and ors BLC 587.

 

Sections 33 and 81

 

The question of limitation as provided in section 33(2) of the Customs Act regarding claim in respect of duties paid in the case of provisional assessment under section 81 of: the Customs Act has no manner of application in the instant case since there was no final assessment. So, in no way provision of section 33 of the Act disentitles the respondent to seek direction for refund of excess duties realised at the time of provisional assessment of duties on the goods imported from India through Benapole.

 

Government of Bangladesh and others vs Md Salim Hossain 9 BLC (AD) 127.

 

Sections 79(2) and 82

 

Upon allowing the petitioners to submit their bills of entry and receiving the same after more than four months the customs authority, it appears, allowed the extended period as provided under section 79(2) of the Act, as such, now they cannot pas? any order taking advantage of SRO No. 158.

 

Cab Express (BD) Ltd vs Commissioner of Customs and others 9 BLC 398.

 

Section 81

 

Respondents acted illegally, without any lawful authority in making provisional assessment of -the goods in question at US$ 1400 per metric ton and the petitioner's imported goods are liable to be assessed at the rate of US$ 400 per metric ton and the petitioner of the respective writ petition is entitled to get refund of the amount which he paid as customs duty in excess.

 

Salim Hossain (Md) vs Government of Bangladesh and others 6 BLC 168.

 

Section 156 (89)

 

It is clear that the Chief Martial Law Administrator interfered with the awarding of sentence and imposed 3 sentences namely, imprisonment, fine and confiscation which the High Court Division found to be not authorised by law when the confiscation has been affirmed in the later part of the order of Chief Martial Law Administrator the High Court Division rightly found that this should be held to be without lawful authority.

 

Bangladesh and another vs Feroz Mehedi 6 BLC (AD) 80.

 

Section 193

 

Where the respondents have not acted in accordance with law and acted in excess of the power conferred under the law the petitioners can invoke the writ jurisdiction without exhausting the alternative forum.

 

Showkat Ali"and15 others vs Commissioner of Customs and others 6 BLC 357.

 

Section 193

 

Ends of justice would be best served if the petitioner is allowed to prefer the appeal with 100% Bank Guarantee instead of 50% deposit in cash.

 

Seacom Shipping Ltd vs Commissioner of Customs and others 6 BLC 516.

 

Section 193

 

No extraordinary jurisdiction of the High Court Division is available to a person whose grievance arises out of the order of assessment of customs duties. Petitioner has to prefer an appeal in accordance with the. Customs Act, 1969.

 

Sabedur Rahman (Md) vs Commissioner of Customs and others 8 BLC 325.

 

Section 193

 

It is the settled principle that where the vires of Statute of statutory provision is under question the remedy can be availed of under the Writ Jurisdiction as provided in Article 102 of the Constitution though alternative remedy having not been availed. In such a case the alternative remedy is neither efficacious nor adequate and where the wrong complained is so inextricably mixed up the High Court Division may, for the prevention of public injury and vindication of public justice, examine such complaint. The present writ petition are maintainable because the remedy provided in the Act would not be equally efficacious to bar the jurisdiction under Article 102 of the Constitution. Thus, in not availing the alternative remedy there is no bar under facts and circumstances of these writ petitions to vindicate the grievances under the writ jurisdiction.

 

Cab Express (BD) Ltd vs Commissioner of Customs and others 9 BLC 398.

 

Section 193C

 

The admitted position is that the amount of penalty of Taka 5 lac and odd was reduced to 3 lac and odd by the Appellate Tribunal against which the department did not move the higher forum. Therefore, the order given by the Appellate Tribunal reducing the penalty reached finality. The respondent Nos. 1-4 are directed to refund the amount of Taka 2,65,755 to the petitioner within l(one) month from the date of receipt of the order.

 

Seacom Shipping Ltd vs Commissioner of Customs and others 10 BLC 719.

 

Sections 194 and 196

 

The provision of appeal under section 42 of the VAT Act and applicability of section 196 and section 194 of the Customs Act having been amended granting ample power to the appellate authority, non-availing the forum of appeal on the ground of inflexible pre­conditions or for the question of interpretation of statute will not ipso facto give the petitioner a right to avail the writ jurisdiction. Thus, it is found that having not availed the alternative adequate remedy of appeal the writ petitions are not maintainable.

 

Aromatic Cosmetics Ltd vs Commissioner, Customs, Excise and  VAT Commissionerate and ors 9 BLC 443.

 

Sections 194(1) and 202(1)

 

Since it is prima facie established that the petitioner company has made payment of entire duties and other charges to their appointed agent, who in collusion with the customs officials and others defrauded the Government it would cause undue economic hardship to the petitioner if they are to pay statutory deposit along with the appeal. During the pendency of the appeal before the Tribunal the respondent 1 has issued the impugned order suspending the commercial operation of the petitioner company under section 202(1) of the Customs Act read with section 56 of the VAT Act, 1991 and the respondent 3 was directed to hear and dispose of the appeal within six months from the date of receipt of the order without realising any portion of the disputed amount from the petitioner under section 194 of the Customs Act.

 

Lilac (Private) Ltd vs Commissioner of Customs and others 9 BLC 492.

 

Section 196

 

The powers conferred upon the Appellate Tribunal pursuant to the provisions of section 196B(1) of the Customs Act are of widest aptitude and it can pass an ad interim order during the pendency of an appeal which is reasonably ancillary and incidental to the main appellate jurisdiction. The provisions of VAT Act read with the relevant provisions of Customs Acl do not show that there is an express bar in making any interim order or by necessary implication.    

 

Commissioner Customs, Excise & VAT vs Customs Excise & VAT Appellate Tribunal (Spl. Orignal) 8 BLC 329.

 

Section 196D

 

According to the provision of section 196D of the Customs Act, sixty days' limitation shall have to be computed from the date when the notice of the impugned order is served upon the petitioner. Accordingly there has been a delay of 28 days in preferring the appeal. Section 29(2) does not say that section 14, like sections 4, 9 to 18 is excluded in all cases governed by the Special Law, rather it says that these sections are applicable, but only "in so far as they are not expressly excluded" by the Special Law. In other words, unless application of these sections is not excluded in express words and language, they shall apply. The relief as sought under section 14 of the Limitation Act, is, according to the language as employed in that section, not for condonation of delay, it is for exclusion of the time spent in a wrong forum. Under section 14 of the Limitation Act the Court cannot exercise its discretionary power to condone the delay or extend the time for preferring the application or appeal as the Court can do under section 5 of the Limitation Act on being satisfied on the cause shown. If on fact it is found that the litigant party has acted in good faith and perused the same remedy in a wrong forum with due diligence, the court shall exclude the time in computing the period of limitation.

 

Shamsul Hoque vs Customs, Excise and VAT Appellate Tribunal & another 7 BLC 50.

 

Sections 201, 192, 193 and 196

 

If section 193 or section 196 is read with sections 192 and 201 it.will appear to us that in the facts and circumstances of the instant case the appellate forum provided by the Customs Act does not appear to be an efficacious remedy because if the petitioner is forced to go before the appellate forum he may be forced to go out of business when the appeal is disposed of beyond 45 days. Therefore, the appellate forum, in the instant case, does not appear to be an appropriate .and efficacious remedy.

 

Abdullah-al-Rashid vs Customs House, Chittagong and other 10 BLC 541.

 

Section 204

 

It is a legal obligation conferred upon the customs authority pursuant to section 204 of the Customs Act to supply the certified copies of customs documents or any note sheet relating to assessment of any consignment. On a perusal of the different provisions of the Customs Act it appears that time is important and it may adversely affect an importer if he cannot move quickly against the order by which he feels aggrieved. Therefore, as a stop-gap arrangement the High Court Division recommends that the customs authority must supply authenticated photo-copies of the customs documents including the note sheets of assessment orders as early as possible to an appellant but not beyond 3 days from the date of receipt of the application with requisite fees.

 

Abdullah-al-Rashid vs Customs House, Chittagong and other 10 BLC 541.

453

Customs Agents (Licensing) Rules, 1986

Citation: 8 BLC 558

Case Year: 1986

Subject: Customs Agents (Licensing)

Delivery Date: 2018-05-08

Customs Agents (Licensing)

Rules, 1986

 

Rules 19 and 21

 

Since the petitioner came to this court before initiating any further action it could be said that no proceeding has been initiated and no proceeding is pending since notice for showing cause could not be issued because of the pendency of the rule and the investigation could not be proceeded with in order to take final action under Rule 19, the High Court Division was Pleased to direct the respondents to make investigation according to the provision of Rule 19 of the Rules of 1986, by issuing show cause notice upon the petitioner.

 

Ahmed Ullah vs Commissioner of Customs and others 8 BLC 558.

454

Declaration and Alteration of Municipalities Rules, 1978

Citation: 6 BLC 644, 8 BLC 490

Case Year: 1978

Subject: Declaration and Alteration of Municipalities

Delivery Date: 2018-05-08

Declaration and Alteration of Municipalities Rules, 1978

 

Rules 3, 4 and 5

 

When the petitioner himself wanted to be the Administrator of the newly declared Paurashava, the objection of the petitioner against such alteration has got no legal basis and when the inhabitants of the concerned urban area did not raise any objection in response to the notice published under rule 3 of the Rules of 1978, inviting suggestions and/or objections, in respect of the proposal for declaring the said urban area as a municipality, it is apparent that the requirements of law as spelt out in the Ordinance as well as in the rules have been fully complied with and the Government rightly declared the urban area of Teknaf Sadar Thana as Teknaf Pourashava. The Government did not record the reasons for invoking section ISA of the Pourashava Ordinance in appointing the respondent No. 4 as Administrator of Teknaf Pourashava. Mere stereotyped statement that the order was passed in the interest of the public has got no value. The Government have ignored the provisions of Articles 9, 11 and 59 studded in the Constitution and hence the order appointing the respondent No. 4 as the Administrator of Teknaf Pourashava is declared as illegal, void and without any lawful authority.

 

Ejahar Miah alias Ezhaml Hacfiie vs Government of Bangladesh and ors 6 BLC 644.

 

Rules 3, 4, 5 and 6

 

The allegations on which the writ petitions were brought could not be substantiated by producing undisputed documents. Moreover, these are all disputed questions of fact which cannot be resolved in writ jurisdiction. Furthermore, since the Government by filing affidavit-in-opposition and by producing relevant Government files have been able to show that all the legal formalities required for the purpose were duly complied with and as such there is no merit in the writ petitions.

 

Nizamnddin and others vs Ministry of LGRD and Co-operatives Secretary and others 8 BLC 490.

455

Deposit Pension Scheme Rupali Bank

Citation: 7 BLC 293

Subject: Deposit Pension Scheme Rupali Bank

Delivery Date: 2018-05-08

Deposit Pension Scheme Rupali Bank

 

Closing of Deposit Pension SchemeWithout notice—Violation of principle of natural justice

 

Bank cannot stop Deposit Pension Scheme without giving notice to the holder of the Account. Accordingly, the defendant Bank was directed to pay full benefits and interst on the DPS Account of the plaintiff.

 

Tapon Kumar Kundo vs Abul Hossain Kfon and ors 7 BLC 293.

456

Dhaka Metropolitan Police Ordinance, 1976

Citation: 10 BLC 373

Case Year: 1976

Subject: Dhaka Metropolitan Police

Delivery Date: 2018-05-08

Dhaka Metropolitan Police Ordinance, 1976

 

Sections 15(c) and 16(e)

 

In the instant case, respondent No. 10 had absolutely no basis to form opinion that the documents of the government car are false and in impounding such documents he was in gross violation of section 161 of the Motor Vehicle Ordinance, 1983 and such actions of the police officer was not only excess of his jurisdiction, but malafide too. Under the Police Act, 1861, a duty was cast upon the police by section 23 to "prevent commission of offences and public nuisance". The Police Regulation of 1943 imposed further control on the police by requiring them to "abstain from causing unnecessary harassment either to parties or to the people generally." Regulation 33(a) required all ranks to "show forbearance, civility and courtesy towards all classes." As an additional measure, rudeness, harshness and brutality were forbidden by Regulation 33(b). More recently, in 1976, under the Ordinance, the police was required "to act with strict regard to decency and reasonable gentleness" in dealing with women and children.

 

The Police, as the law enforcing agency of the State, are to ensure that the law of the land is obeyed and followed by the general public. It is, therefore, not only a matter of utmost regret, but also of grave concern, when such acts of violation are committed by the police themselves. It is also a sad reality that although police excesses occur regularly, such incidents are rarely challenged in a court of law. The facts stated in the writ petition, being uncontroverted, are, therefore, deemed to be correct in the eye of the law. Quite clearly, the conduct of respondent No. 10 not only falls within the ambit of the term 'misconduct', it is also violative of the other provisions of the law. As such, the High Court Division has no hesitation in holding that the allegation of misconduct against respondent No. 10 has been established.

 

Brigadier (Retd) AHM Abdullah vs Government of Bangladesh 10 BLC 373.

457

Dhaka Municipal Corporation Employees Service Rules, 1989

Citation: 7 BLC 403

Case Year: 1989

Subject: Dhaka Municipal Corporation Employees Service

Delivery Date: 2018-05-08

Dhaka Municipal Corporation Employees Service Rules, 1989

 

Rule 16

 

Neither Assistant Social Welfare Officer nor Market Supervisor has yet been incorporated in the feeder post of Deputy Taxation Officer under Dhaka Municipal Employees Service Rules, 1989, so they are disqualified to be posted in charge of the post of Deputy Taxation Officer.

 

Shamsul Alam Miah (Md) vs Mayor, DCC and ors 7 BLC 403.

458

Dhaka University Order, 1973

Citation: 7 BLC (AD) 53,

Case Year: 1973

Subject: Dhaka University

Delivery Date: 2018-05-08

Dhaka University Order, 1973

[PO No. 11 of 1973]

 

Article 46 of the First Statutes

 

From Article 46 it is clear that if there is a notification by the Registrar at the order of the Vice Chancellor that casting of votes will take place at certain centres outside Dhaka on a certain date and time the Presiding Officers are required to count the ballots immediately after the close of polling and they are to send their reports to the Vice Chancellor in detail who in turn after consolidation of the result is required to announce the result. But here in the present case it appears that though admittedly the polling in some centres took place outside Dhaka but those were not counted there. They were sent to the Vice Chancellor and ballots were counted in the University premises and the result announced. This is contrary to the clear provision of Article 46 of the Statute and a flagrant violation of the same.

 

Dhaka University and others vs Gias Kama! Chowdhury and others 7 BLC (AD) 53.

 

Article 46(3) of the First Statutes

 

In the present case nothing has been produced either before the High Court Division or before the Appellate Division under what, circumstances this election could not be held during the year in question and hence the election held in 1999 for the year 1997-1998 violating the provisions of Article 46(3) of the First Statutes is no election in the eye of law.

 

Dhaka University and others vs Gias Kamal Chowdhury 7 BLC (AD) 53.

 

Article 46(l)(i)(e)(9)(16) and (17)

 

Article 46(l)(i)(e), (9), (16) and (17) clearly provides that counting must be at the place of voting. If the polling is held outside Dhaka then the ballots must be counted by the Presiding Officers at those polling centres. There is no ambiguity in the law and as such there cannot be any compromise on any legal provision and Annexure-17 dated 11-6-1999 cannot give any authority to the Vice Chancellor to shift the counting to Dhaka from outside polling centres. This is clearly against the provision of the Statutes. Furthermore, sub-section (13) of this section has provided that voting at each centre shall take place under the direction, control and supervision of the Presiding Officer. So, when a Presiding Officer is appointed it is his duty to ensure the casting of votes and also counting of the same after close of the poll. But in the present case polling took place in some centres outside Dhaka but in view of resolution Annexure-17 sealed covers containing ballot papers were brought to Dhaka and counted here which is against the clear provision/intention of the law. The questioned election has been conducted not in accordance with the provisions of Dhaka University Order 1973 and the First Statutes and this election is no election in the eye of law.

 

Dhaka University and others vs Gias Kamal Chowdhury and others 7 BLC (AD) 53.

 

Article 46(17)(ii)

 

When the election that was held is no election in the eye of law the provision of sub-article (17)(ii) of Article 46 of the First Statutes providing that no election shall be called in question except by an election petition has got no manner of application and in such a case an aggrieved person can invoke the writ jurisdiction without exhausting the alternative forum prescribed by law and the High Court Division has not committed any wrong or illegality in holding that the writ petition is maintainable.

 

Dhaka University and others vs Gias Kamal Chowdhury and others 7 BLC (AD) 53.

459

East Bengal Private Forest Act, 1949

Citation: 6 BLC 54

Case Year: 1949

Subject: East Bengal Private Forest

Delivery Date: 2018-05-08

East Bengal Private Forest Act, 1949

 

Section 7

 

Although in the notification issued in 1953 under section 7 of the Act directing that the contract and management of the Private Forests as mentioned would vest in the Regional Forest Officer, Dhaka for 50 years commencing from the date of taking over but no notification has been produced proving taking over the forest in question when plaintiff proved his tenancy right from the landlord on the basis of a settlement Bandabasta Namud (Hukumchiti) in 1349 BS corresponding to 1942 which was much earlier of the said notification and before issuing such notification plaintiff was tenant under the landlords and after the acquisition of rent receiving interest plaintiff became tenant directly under the Government when it is well recognised that settlement by dakhila can very much be granted by manager or an employee of Zamindary Estate.

 

Hasenuddin (Md) vs Bangladesh, and others 6 BLC 54.

460

Electricity Act, 1910

Citation: 9 BLC 140

Case Year: 1910

Subject: Electricity Act

Delivery Date: 2018-05-08

Electricity Act, 1910

[IX of 1910]

 

Section 26

 

The petitioner neither served any notice demanding justice nor did he raise any objection to the respondents against the electric bills and thus there is laches on the part of the petitioner and, as such, the petitioner is not entitled to get any relief under Article 102 of the Constitution as he has not done his part of his duties before coming to the High Court Division.

 

Moudud Ahmed vs Chairman, Dhaka Electric Supply Authority (DESA) and others 9 BLC 140.

461

Emergency Requisition of Property Act, 1948

Citation: 9 BLC (AD) 205, 7 BLC 689, 7 BLC 172, 10 BLC 298, 10 BLC (AD) 47, 10 BLC (AD) 80, 9 BLC (AD) 56, 7 BLC 689, 10 BLC (AD) 105, 10 BLC (AD) 123, 9 BLC (AD) 51

Case Year: 1948

Subject: Emergency Requisition of Property

Delivery Date: 2018-05-08

Emergency Requisition of Property Act, 1948

 [XIII of 1948]

 

Section 2(111)

 

The definition of land as given in the Act is not limited to land alone but it includes benefit arriving out of it and things attached to the earth. The compensation is to be assessed both for the movable and immovable properties. The land acquired does not mean the land simpliciter, but also includes benefit arising out of the land, things attached to the earth or permanently fastened to anything attached to the earth and, in that state of the matter, in assessing statutory compensation & 15% in respect of acquired land the arbitrator has not committed any error of law.

 

Government of Bangladesh, represented by DC vs Anwara Huq 9 BLC (AD) 205.

 

Sections 3 and 5

 

It is crystal clear that the requisitioning authority requisitioned 1.10 acres of land far in excess of the actual requirement. Hence, it cannot be said that there was any public purpose behind the order of requisition in excess of land actually required in the present case. Requisitioning authority did not apply its mind as to the actual requirement of land for immediate possession and did not also "strike a balance" between the requirement of the requiring body and the sufferings of the petitioners as the expropriated land owners while applying its mind as to the area necessary for the purpose for which requisition was made. Thus, the impugned order of requisition under the said Act was and still is illegal and invalid.

 

Ameer Hossain (Md) and others vs Ministry of Land & others 7 BLC 689.

 

Sections 3 and 5(1) (7)

 

After acquisition of the property in 1978, the Deputy Commissioner, the respondent No. 1, served notice on 24-3-85 under section 7(AA) of the Emergency Requisition of Property Act, 1948, that is, after a period of 7 years for payment of compensation of money and on this score the question of payment of compensation of the acquired property to appellants in terms of market value of 1960 does not arise at. all as the compensation of the property is to be paid as per market value which was prevailing on the date of acquisition of the property. The title does not vest giving notice under section 3 of the Act but the title only vests after notification under section 5(1) of the Act and in the present case, the property was requisitioned on 7-9-1960 but the ownership remained with the appellants till 26-10-1978. The respondent Nos. 1 and 2 without considering the market value of the land in the vicinity have assessed the compensation of the acquired land. Accordingly, the appellants will get Taka 50,40,000 for land + 2,17,00,000 for rent + 11,91,780 for 15% in total 2,79,31,780 minus 2,92,000 (already received by plaintiff) = 2,76,39,780 as compensation with interest @ 13.5% from the date of judgment till payment thereof.

 

Hossain Khan (Md) and others vs Government of Bangladesh & others 7 BLC 172.

 

Sections 3, 5(1) (7) and 7(aa)

 

It appears from the oral and documentary evidence on record that the appellant has rightly claimed compensation at the rate of Taka nine lac per acre but the lower Court wrongly assessed the case land at the rate of Taka sixty thousand per acre. The valuation assessed for the mango trees and those of other trees have got no conformity with the evidence on record. The amount claimed by the appellant as loss of annual income is quite reasonable. The claim of 15% additional compensation under section 23(2) of the Land Acquisition Act, 1894 is in accordance with law.

 

Mozlema Khatun and others vs Bangladesh 10 BLC 298.

 

Section 5(7)

 

The judgment of the High Court Division being based on wrong and incorrect presumption i.e. the land in suit has been acquired by the Government and thereby vested in the Government and the fact of non-acquisition having been established by the Memo dated 22-11-2003 written by the Deputy Commissioner, the finding of the High Court Division that because of vesting of the land in suit Upon acquisition by the Government the plaintiffs did not acquire any right, title and interest in the land in suit is not legality sustainable.

 

Nurun Nabi Mullah vs Abdul Karim 10 BLC (AD) 47.

 

Section 8

 

Since the land of Azizul Huq, the vendor of the writ petitioner, has already been released by the Notification published in the Bangladesh Gazette on.11-11-1999 and consequent thereupon the RAJUK in no way is competent to lay any claim over the land of the said vendor of the writ petitioner.

 

Bangladesh and others vs Numl Haque Bhuiyan 10 BLC (AD) 80.

 

Section 8B

 

As per provisions of section 93A(4)(h) of the Town Improve­ment Act, 1953, there is absolutely no scope for any release of the requisitioned property by the Government. Apart from the provision under section 8B of the Emergency Requisition of Property Act, 1948 for withdrawal from acquisition, there is no provision in law for release of the property as has been claimed by the petitioners as the land has been admittedly requisitioned with a view to acquire the same for Greater Dhaka Development Project by the RAJUK under specified project. Mere non use of the acquired land for the purpose for which it was acquired will not give any right to get return of the same. Non-payment of compensation also is no ground for release of the land acquired under the provision of Emergency Acquisition of Property Act, 1948 or Town Improvement Act, 1953.

 

Abdul Huq and others vs Secretary, Ministry of Land and others 9 BLC (AD) 56.

 

Section 8B

 

Petitioners are entitled to invoke their fundamental right guaranteed under Article 42 of the Constitution, although the deprivation of their right to continue in possession as owners of the land requisitioned and acquisitioned in excess of the requirement of the requiring body, Roads and Highways Division, was made by pre-constitution orders in 1951 and 1957 inasmuch as the deprivation of the petitioners is sill continuing as the excess land still remains unused and unutilized. The aforesaid pre-constitution orders of requisition and acquisition have thus become void because of the violation of the said fundamental right. Consequently, the impugned order of acquisition in this case, insofar as it relates to the excess land measuring 1.10 acres of land in the two plots is also illegal, invalid and violative of the fundamental right of the petitioners as guaranteed under Article 42 of the Constitution. Since the acquisition of the excess land of the petitioners to the extent of 1.10 acres is invalid, the same is liable to be withdrawn from the order of acquisition and the possession thereof is thus liable to be restored to the petitioners.

 

Ameer Hossain (Md) and others vs Ministry of Land& others 7 BLC 689.

 

Section 8(B)

 

When there is notification under section 5(7) of the Act of 1948, the payment of compensation as evidenced by Annexure dated 15-10-1974, the gazette notification dated 4-9-1990 cannot be declared to have been issued without lawful authority and to be of no legal effect as has been rightly found by the High Court Division. The Government may withdraw from the process of requisition before compensation is paid.

 

Abdullah-al-Mamun vs Secretary, Ministry of Land, Government of Bangladesh 10 BLC (AD) 105.

 

Section 14A

 

It is not disputed that by gazette notification dated 20-2-1950 the total area of CS Plot No. 533 (suit plot) i.e. 2.30 acres of Mouza-Tejkunipara, PS Tejgaon, District-Dhaka along with other lands were acquired by the Government. The learned Attorney-General further submitted that although the plaintiff cleverly sought declaration of title over the entire 2.30 acres of land of the suit plot but that will not bring the suit out of the mischief of section 14A of the.Act. Since there are some patent incongruities in the plaint of Title Suit No. 208 of 1994 brought by the plaintiff Shamirunnessa Bibi the ex parte decree dated 12-12-1984 ex facie is not sustainable.

 

Bangladesh, represented by the DC, Dhaka and others vs Shamirunnessa Bibi & others 10 BLC (AD) 123.

 

Section 14A

 

The settled law is that the provision of section 14A of the Emergency Requisition of Property Act, 1948 totally bars in filing suit in a civil Court questioning legality of the order passed or any action taken under the Act. The suit that was filed and finally decreed by the trial Court as well as by the lower appellate Court was a suit totally non-entertainable by the trial Court as the civil Court had no jurisdiction to entertain the suit as framed by the respondents. Thus the decree so passed in the suit was a nullity.

 

Director of Housing and Settlement vs Abdul Majid Howlader and ors 9 BLC (AD) 51.

462

Emigration Ordinance, 1982

Citation: 7 BLC 103

Case Year: 1982

Subject: Emigration

Delivery Date: 2018-05-08

Emigration Ordinance, 1982

[XXIX of 1982]

 

Sections 10 and 14

 

It cannot be said that the petitioner did not get any opportunity of being heard. As the petitioner's reply was unsatisfactory, the Ministry for Labour and Manpower cancelled his recruiting licence and forfeited his security money. There is no reason to accept the contention of the petitioner that he has been prejudiced by such order of the government, rather, it is found that the right acquired by him was lost by his conduct for which the authority rightly cancelled his recruiting licence and forfeited his security money.

 

Humayun Kabir (Md) vs Ministry of Labour and Manpower 7 BLC 103.

463

Employees Transferred from Development Budget to Revenue Budget and Seniority Fixation Rules, 1995

Citation: 9 BLC 116

Case Year: 1995

Subject: Employees Transferred from Development Budget to Revenue Budget and Seniority Fixation

Delivery Date: 2018-05-08

Employees Transferred from

Development Budget to

Revenue Budget and Seniority

Fixation Rules, 1995

 

Rule 3(Kha)

 

The petitioners having the service of the BSTI in the post of Inspector (Meteorology) in 1983 and also having enjoyed all the rights and privileges attached to the service have acquired a vested right to have their seniority counted from the date of their appointment in 1983 and not from 1-7-86 purportedly shown as the date of regularisation of service. Such regularisation of service is palpably illegal and without jurisdiction inasmuch as it is done at a such belated stage nearly 14 years of their appointment and that too in violation of the principle of natural justice. On the conclusion of the project on 30-3-94 service of Md Khademul Islam respondent 3 in Writ Petition No. 4012 of 1999 in the project as Assistant Director was terminated and he was out of service for more than 6 months and subsequently, Md Khademul Islam was appointed afresh as an Assistant Director (Meteorology) in the revenue budget of the BSTI on 9-10-94 and his such appointment in the revenue budget of the BSTI was a fresh appointment and thus the continuity of his service as Assistant Director was broken as he was out of service for more than 6 months. Hence the impugned order of bridging up of the service gap of Khademul Islam is declared illegal and without jurisdiction and is accordingly, set aside. It is palpably clear that respondent Khademul Islam was junior to both the petitioners, Mohammed Ali and Md Abu Hossain in service not only as Inspector but also as Assistant Director (Meteorology).

 

Thus the promotion of respondent Khademul Islam to the post of Deputy Director (Meteorology) in the BSTI on 31-5-99 without considering the case of above petitioners for promotion is palpably illegal and without jurisdiction.

 

Mohammad Ali vs Bangladesh Standard & Testing Institution (BSTI) and others 9 BLC 116.

464

Employment of Labour (Standing Orders) Act, 1965

Citation: 8 BLC 42, 10 BLC (AD) 114, 7 BLC (AD) 119, 10 BLC (AD) 4, 10 BLC (AD) 21, 10 BLC 716, 10 BLC (AD) 103, 10 BLC 485

Case Year: 1965

Subject: Employment of Labour (Standing Orders)

Delivery Date: 2018-05-08

Employment of Labour (Standing Orders) Act, 1965

 [VII of 1965]

 

Section 2(v)

 

Bangladesh Agricultural Development Corporation of which the petitioner is a store-keeper which cannot be termed as a commercial establishment or industrial establishment for which the contention of the learned Advocate for the respondent that the petitioner being a worker cannot file the writ petition is not acceptable. Owing to non-service of a copy of the inquiry report upon the petitioner either along with the second show cause notice or thereafter, being the admitted position, the petitioner was seriously prejudiced in representing the case and this infringement of the rules of natural justice has rendered the order of dismissal illegal.

 

Sayeedul hucj Bhuiyan (Md) vs Chairman, BADC and others 8 BLC 42.

 

Section 2

 

The respondent No. 2 was serving as security guard in the main installation of Meghna Petroleum Ltd at Chittagong continuously since 2-9-1989. The respondents are workers within the meaning of section 2(v) of the Act of 1965 and they have become permanent workers after expiry of 3 months from the date of appointment. Mere appointment on a temporary basis is not the sole criteria for holding the worker as temporary one. Mere misquoting of section would not deprive the workers to get the benefits, if they are otherwise entitled to get the same under the law.

 

Meghna Petroleum Ltd vs Chairman, 1st Labour Court, Chittagong and another 10 BLC (AD) 114.

 

Section 17(3)(b)

 

Admittedly, respon­dent No. 1 did not pray for his reinstatement in service with back wages and the relief sought for was in declaratory form and the Labour Court found that such relief was not available to the respondent even though he had a good case for directing reinstatement. The High Court Division granted relief by way of reinstatement with 50% back wages. It is well settled that the High Court Division cannot sit as a court of appeal in such matters and act as a civil appellate authority and hence the High court Division acted beyond its jurisdiction.

 

Bangladesh Tobacco Company Ltd and another vs Md Azizul Huq & another 7 BLC (AD) 119.

 

Section 25

 

In the background of the facts and circumstances of the case the order terminating the service of the respondent is not a termination simpliciter and it was done for his trade union ctivities when he was president of the trade union.

 

United Commercial Bank Ltd vs Md Ahsanullah and am 10 BLC (AD) 4.

 

Section 25

 

In the background of the materials on record it is seen that the respondent No. 2 was dismissed from the service of the appellant on the basis of the flawed departmental proceeding and criminal proceeding and consequently as the order of dismissal so made as was not legal the only conclusion that follows is that respondent No. 2 was not dismissed from the service of the appellant on August 21,1984.

 

Pubali Bank Limited vs Chairman, First Labour Court and another 10 BLC (AD) 21.

 

Section 25

 

It appears that the Labour Court below, in view of the facts and circumstances of the case, failed to appreciate the contemplations of the aforesaid section 25 of the Act and thereby arrived at an erroneous decision in dismissing the Complaint Case as being not maintainable under section 25 of the aforesaid Act and, as such, the same is not sustainable in law.

 

Shamsur Rahman vs Chairman, First Labour Court and others 10 BLC 716.

 

Section 25(l)(a)

 

Section 25(l)(a) provides that the worker concerned shall bring his grievance to the notice of his employer, in writing, within fifteen days of the occurrence of the case of such grievance. In all the cases the grievance petitioners were submitted long after the expiry of 15 days' time limit. Employment of Labour (Standing Orders) Act being a special law should be applied strictly. The limitation cannot be condoned either by the tripartite agreement or by the Labour Court.

 

Syed Ahmed Bhuiyan vs Karnaphuli Fertiliser Co. Ltd 10 BLC (AD) 103.

 

Section 25(l)(a)

 

Determination of the age of the petitioner is not a right secured or guaranteed within the meaning of section 34 of the Industrial Relations Ordinance, 1969.

 

Mozammel Haque Chowdhury (Md) vs Chairman, Labour Court and another 10 BLC 485.

 

465

Enemy Property (Continuance of Emergency Provisions) Ordinance, 1969

Citation: 10 BLC 449

Case Year: 1969

Subject: Enemy Property (Continuance of Emergency Provisions)

Delivery Date: 2018-05-08

Enemy Property (Continuance of

Emergency Provisions) Ordinance, 1969

 [I of 1969]

 

Section 2

 

The plaintiff, the Additional Deputy Commissioner (Rev) in charge of vested and non-resident property failed to prove either by documentary evidence or by oral evidence that the recorded owners of the SA khatian left the country for India in 1965 and the suit land was declared as enemy property or the same was treated as vested property. The established principle of law is that the plaintiff is to prove his own case independent of the weakness of the defence case. Unless the suit land became enemy property and vested in the Government, the petitioner has got no locus standi to challenge the ex parts decree passed in the previous suit.

 

Rahmat-e-Alam Islam Mission and Etimkhana (Secretary) vs Md Shafiqiil Huq and ors 10 BLC 449.

 

Section 2

 

As the law on enemy property itself died with the repeal of Ordinance I of 1969 with effect from 23-3-1974, no further vested property case could be started thereafter.

 

Rahmat-e-Alam Islam Mission and Etimkhana (Secretary) vs Md Shafiqiil Huq and ors 10 BLC 449.

466

Evidence Act, 1872

Citation: 10 BLC 230, 7 BLC 90, 8 BLC (AD) 115, 6 BLC (AD) 141, 10 BLC 370, 10 BLC 535, 10 BLC 394, 6 BLC 82, 6 BLC 599, 10 BLC 397, 8 BLC (AD) 160, 8 BLC (AD) 67, 6 BLC 624, 8 BLC (AD) 158, 8 BLC (AD) 172, 9 BLC 333, 9 BLC 322, 10 BLC 720, 10 BLC 397, 10 BLC 266,

Case Year: 1872

Subject: Evidence

Delivery Date: 2018-05-08

Evidence Act, 1872

[I of 1872]

 

Section 3

 

Arbitration is a settlement of a dispute on rendering a decision by Arbitrators and not a decision reached by a Court of law, Civil, Criminal or Revenue but of Arbitration. Arbitrator has been excluded from the definition of the word "Court" as per section 3 or The Evidence Act, 1872. Arbitrator is not bound by technicalities of The Evidence Act and he does not adjudicate nor does he sit as a Court or Tribunal. Proceeding before Arbitrator need not be conducted with such meticulous care as is required in ordinary Court of law.

 

Chittagong Steel Mills Ltd and another vs MEC Dhaka and others 10 BLC 230.

 

Sections 3 and 68

 

Even if the ' Aposhbontannama', the Ext Ka is excluded from judicial consideration since the document is not admissible in evidence on the ground that the original was not called for and the photostat copy cannot be admitted in evidence the document itself is not a registered instrument according to the provision of Registration Act and that the same is not proved by any attesting witnesses but there are other materials to determine the question of oral partition. As there is no allegation of inconvenience to the enjoyment and possession of the plaintiff's property the claim of the plaintiff as regards infringement of privacy does not stand to reason. It cannot be said that the defendant's six storied building is still part of the undivided dwelling house of the plaintiffs. Moreso, the decision of the Appellate Division on 13-1-98 in the matter of pre-emption case under section 24 of the Non-Agricultural Tenancy Act, has further affirmed the right of the defendant No. 1 to hold his purchased property. Having failed to pre-empt the land the suit has been instituted as a second device to oust the defendant No. 1 from his property and thus, from the materials on record, oral and documentary, the conclusion can be drawn that the suit property was amicably and orally partitioned between the co-owners.

 

Dr Ismat Mirza and other vs Md Mosaddek Hossain and ors 7 BLC 90.

 

Sections 13,42 and 43

 

The law is now settled that a Judgment whether inter parties or not may be conclusive evidence against all persons of its existence, date and legal effect, as distinguished from the accuracy of the decision rendered. The former judgments and decrees were not themselves a transaction or an instance within the meaning of section 13 of the Evidence Act, but the suit in which they were made was a transaction or an instance in which the defendant's right of possession was claimed and recognised and that to establish that such transaction or instance took place the previous judgment was the best evidence.

 

Robert Pinaru vs Moulana Habibur Rahman and others 8 BLC (AD) 115.

 

Section 18

 

Per Mohammad Gholam Rabbani ] : The charge was not admitted by the respondent rather he denied it as baseless in the reply stating the whole truth giving the reason for victimising him by the complainant which cannot be an admission to the charge, but it was a part of his defence and it was not considered as such by the Enquiry Officer. Even if it is conceded that the statements made by the respondent amounted to admission of misconduct, he could not be removed from service for the alleged admission without holding a formal enquiry in accordance with rules. Admittedly, instead of the Registrar, the Chief Justice himself proposed for major punishment to both the accused and accordingly, second show cause notice was issued but the Chief Justice was not given to consider the replies and the Registrar imposed major punishment on the respondent and in fact acquitted the other and such action must be held to be malafide, biased and illegal.

 

Registrar, Supreme Court of Bangladesh vs Md Shafiuddin and another 6 BLC (AD) 141. 

 

Section 18

 

The plaintiff opposite party No. 1 in his deposition admitted his negligence and on the face of such admission it was open to the authority concerned to take appropriate action against the delinquent.

 

MD. IFIC Bank Ltd vs SM Icjbal Hossain and others 10 BLC 370.

 

Section 18

 

From the amendment of the written objection filed by the pre-emptees in both the cases it is found that the pre-emptees admitted the pre-emptors as, co-sharer in the case jote by deed of Heba executed by their father Amiruddin Shah in favour of the pre-emptors and other brothers. In view of such admission, which has been overlooked or was not brought to the notice of the Courts below it is clearly established that the pre-emptors are co-sharers in the case jote and the finding by the Courts below, that the pre-emptors are not co-sharers being contrary to the materials on record are not maintainable and are liable to be set aside.

 

Elahi Boksa & Hedo and another vs Maqbul Hossain Barker and others 10 BLC 535.

 

Sections 18, 21 & 68

 

The evidence regarding the settlements is hopelessly inadequate. PW 1 had no personal knowledge of the Amalnama. There is none comes to prove it. PW 3 says that he took settlement on the basis of amalnama. But in both the cases neither the writers nor the subscribes nor the witnesses were examined to prove the amalnama. The plaintiff No. 2 made out a nadabipatra in favour of the school and her husband is a witness to it. PW 2, Moklesur Rahman said in his deposition that he took lease of the land in 1972 and renewed the same for 3/4 years and thereafter discontinued. This lends support to the evidence led by DW 1, Tehsilder that the land has been vested in the government as non-resident property and the authority has been giving the same in lease from one lessee to other. It is clear that the plaintiffs are out of possession according to their own admission and, as such, the DWs cannot be disbelieved regarding possession of the defendant No. 3, the school.

 

Nazibul Islam (Md) vs Government of Bangladesh, represented by the DC, Rajshahi 10 BLC 394.

 

Section 43

 

A criminal proceeding is not admissible and cannot be taken into consideration in deciding a civil proceeding.

 

Shamsul Huda (Md) and another vs Mahmooda Khatun and others 6 BLC 82.

 

Section 43

 

Since the Exhibit 12 series and Exhibit 19 are judgments and orders of various Courts which speak of assertion of right of the plaintiff as a sole surviving heir of Ismail and since that assertion of relationship is a fact in issue in the present case, they were rightly considered by the trial Court as good evidence in terms of section 43 of the Evidence Act and hence the trial Court has not committed any illegality in declaring the plaintiff was entitled to inherit the leasehold right in the shop as it is now well settled that monthly tenancy is heritable.

 

Islamic Foundation Bangladesh vs Firoz Alam & others 6 BLC 599.

 

Section 43

 

From the Judgments of Title Suit No. 3 of 1952 and Title Appeal No. 96 of 1953 it appears that the land of suit jama was amicably partitioned among the predecessors of the plaintiffs and defendants as back as about 30 years before the institution of that suit and on the basis of which their predecessors acquired their suit property. So, it cannot be said that the plaintiffs or their predecessors never got exclusive right, title and possession of the 200 Ajutangsha land of plot No. 7612.

 

Bibi and others vs Md Mahbub and others 10 BLC 397.

 

Section 43—"Judgment inter parties or notContents therein to what extent admissible

 

A previous judgment is admissible also to prove statement or admission or an acknowledgment made by a party or the predecessor-in-interest of a party in his pleadings in a previous litigation. Similarly, a judgment narrating the substance of the pleadings of the parties to a litigation is admissible to establish the allegations made by them on the occasion.

 

Badal Chandra Das and others vs Amena, Khatun 10 BLC 403.

 

Section 45

 

It appears that the learned Joint District Judge on assessment of evidence on record found that the petitioners' application under Order IX, rule 13 was barred by limitation and could not prove the fact of her illness. The High Court Division after considering the facts and circumstances of the case and the decision placed before them rightly held that without examination of doctor the medical certificate granted by him regarding illness is inadmissible in evidence.

 

Anwara 'Begum and others vs Shah Newaj 8 BLC (AD) 160.

 

Sections 45 and 73

 

The safe and best course for the Court would be to avoid the practice of comparing the writing or signature etc. and should not stake its judgment on the opinion formed or view taken upon resorting to risky or, in other words, unsatisfactory and dangerous procedure and the desired course should be to go for microscopic enlargement and expert advice since the science of examination of signature, writing, etc. for determination of similarity has advanced enough and it has reached to the stage of accuracy and certainty as well as expertise skill is also available.

 

Tarak Chandra Majhi vs Atahar Ali Howlader and others 8 BLC (AD) 67.

 

Sections 45 and 73

 

It appears that the learned trial Court rightly rejected the application of the plaintiff to send the disputed signature to the hand writing expert as there are sufficient materials on record to determine the point. Learned trial Court rightly rejected the application for expert on the ground .of delay as well because such application was filed after a lapse of more than one year from the date of filing of the written statement where the defendant denied the bainapatra in question.

 

Bazlur Rahman and another vs M.d Manik Ali 6 BLC 624.

 

Sections 45 & 101

 

The learned single Judge has rightly held that the onus was shifted upon the defendant No. 1 to show that the summons of the earlier suit was served upon the plaintiff and he will have to prove further that the 'soleh' decree was not obtained by practicing fraud and collusion. The finding of the lower appellate court that the plaintiff put her thumb impression on the solenama is based on conjecture.

 

Kartic Chandra Barker and others vs Anarathi, Mondal and other 8 BLC (AD) 158.

 

Sections 45 & 106

 

Since death to the wife was caused while she was residing in the house of her husband, the convict petitioner, he is competent to say how death occurred to his wife and that the explanation which he offered having been found untrue, the conviction and sentence that was passed by the learned Sessions Judge has rightly been affirmed by the High Court Division.

 

Abul Hossain Khan vs State 8 BLC (AD) 172.

 

 

Sections 63 & 101

 

The onus lies heavily on the plaintiff to prove that his predecessor got delivery of possession of the property and he inherited the same by producing documentary and oral evidence but the plaintiff failed to prove that and even no secondary evidence was attempted to be taken hence no interference with the impugned judgment is called for.

 

Aftabuddin Sarkar vs Ashek Ali Mothers 7 BLC (AD) 97.

 

Section 64

 

The appellate Court appears to have relied on the sale certificate and writ of delivery of possession filed first time in appeal but there is no order admitting the same as additional evidence and marking them as exhibits and in such circumstances the Court of appeal was wrong in relying on sale certificate and the writ of delivery of possession in proof of auction sale and delivery of possession as well.

 

Abul Kashem Hozvlader vs Sultan Ahmed and others 9 BLC 333.

 

Section 64

 

It appears that the appellate Court discarded the deed of exchange and the Heba-bil-ewaz executed in favour of the plaintiff by his father simply because those were not admitted into evidence in accordance with law but he arrived at such finding without considering that the executants of the said deeds never disputed the execution thereof rather the written statement and the .evidence on record support such execution and the said two documents were admitted into evidence in presence of the defendants without any objection.

 

Aminul Hoaue (Md) vs Sanat Kumar Dhar and others 9 BLC 322.

 

Sections 65 and 101

 

The plaintiff claimed the suit land as waqf property and exibited the certified copies of some deeds but failed to produce the originals of those deeds and no explanation was given for the same. Nor were the certified copies proved by calling the volumes from the office of the Sub-Registrar. In creating a waqf no formal deed is necessary but if a deed is executed, then the executant is required to prove such deed which the plaintiff has failed. The burden of proving that the property is a waqf property lies heavily upon the plaintiff and no weakness in the defence would help him out.

 

Choudhury Sahabuddin Ahmed and others vs Government of Bangladesh and others 10 BLC 720.

 

Section 67 and 68

 

It is not disputed that Abdul Sattar got the suit property by transfer not from real owner namely, Sufia Begum but from Abdul Sattar to his son on the basis of oral gift confirmed by a declaration through a photostat copy of an affidavit sworn before a Notary Public which having not been corroborated by any witnesses and the same has not been attested with original or duplicate copy and the Notary Public attested the same merely collecting the execution of the affidavit from his memory cannot be said a declaration of oral gift has been proved as required by the Evidence Act.

 

Government of Bangladesh & others vs Paper Converting & Packaging Ltd & others 6 BLC 467.

 

Section 68

 

It appears that the disputed bainapatra, the Ext 1 has been proved by the testimonies of the PWs 1, 2, 3 and 5 of them PWs 2 and 3 are the attesting witnesses and PW 5 is the scribe and all these witnessess uniformly stated in their evidence that Ganesh executed the said bainapatra in their presence on receiving Taka three lac and one as earnest money when the defence totally failed to shake their consistent and corroborative testimony in any manner whatsoever.

 

Naru Gopal Roy vs Parimal Rani Roy and others 6 BLC 323.

 

Section 68

 

Out of the three attesting witnesses of the agreement, one of them was examined in Court who is close relation of the plaintiff as well as a chance witness. When no other attesting witness of the agreement has been examined to prove such agreement, the plaintiff's case regarding agreement is doubtful.

 

Shaikh Haji Musa Hakkani vs Kazi Md Abdul Majed and ors 7 BLC 534.

 

Section 70

 

Mere inclusion of a plot in the schedule of a deed does not create any title when the defendants failed to prove that their predecessor Asia Khatun acquired any right or title in the land of plot No. 7612.

 

Bibi and others vs Md Mahbub and others 10 BLC 397.

 

Sections 70 and 167;

 

Since one of the executants came to the court and admitted the execution of the plaintiffs' kabala by him and by his brother, the attending witnesses were not at all necessary to depose in view of section 70 of the Evidence Act. Any objection as to admissibility of documents has to be taken at the earliest opportunity. No such objection having been taken at the trial Court and that improper admission or rejection of evidence by itself could not be a ground for reversal of the decision of the trial Court.

 

Sharfuddin Ahmed and another vs AliAkbar 10 BLC 266.

 

Section 73

 

The High Court Division after comparing the signatures of Ganesh appearing in the bainapatra with his admitted signatures in the plaint and the compromise petition filed in title suit No. 13 of 1998 has been satisfied that these are the products of the same hand and the learned Subordinate Judge was fully justified in holding that Ganesh duly executed the bainapatra on receipt of earnest money from the plaintiff without sending the same to the hand writing expert as the High Court Division has consistently been holding that the art of calligraphy is yet to attain any degree of precision so that the court can place its explicit reliance on it. The Court being the expert of the experts was itself quite competent to compare the same exercising the power given by section 73 of the Evidence Act.

 

Naru Gopal Roy vs Parimal Rani Roy and others 6 BLC 323.

 

Section 73

 

While comparing the signatures of the defendant Nos. 1 and 2 as appearing in Exhibit 4 with their signatures as appearing in the written statement, deposition sheet and vokalatnama filed in the High Court Division, it appears that the signatures as appearing in Ext 4 with respect to mode, style and manner do not tally with those as appearing in the written statement and deposition sheet and as such, the case of the plaintiff regarding the Ext 4 is not proved.

 

Shaikh Haji Mitsa Hakkani vs Kazi Md Abdul Majed and ors 7 BLC 534.

 

Section 73

 

Upon Perusal of the Ext. 4-kha, a copy of the notice under section 106 of the Transfer of Property Act dated 24-7-1993, learned SSC Judge came to his finding that the tenant-petitioner himself received the copy of the notice by signing his name on the copy of the said notice on 1-8-1993 and on comparison with the signature of the tenant-petitioner with other documents on record, he reached to his decision that the signature of the tenant-petitioner appearing in Ext 4-kha tallies with that of other documents on record and such finding of fact being based on evidence on record cannot be disturbed by the High Court Division in its revisional jurisdiction.

 

Mohammad Islam vs Rahicha Khatoon 8 BLC 37.

 

Section 73

 

So far as the genuineness of the Exhibit 2 is concerned, the learned Subordinate Judge has made comparative study of the executing signatures of this deed with those of an old unassailed registered sale deed dated 25-6-68 which is admitted in evidence. The Court is quite competent to ascertain genuineness of execution of document by making such comparison under section 73 of the Evidence Act. The High Court Division closely examined those two sets of signature of Habibur Rahman Khondaker appearing on the two deeds and found those to be of the same hand.

 

Sajida Begum and others vs Abdul Kader and others 8 BLC 306.

 

Sections 74 and 76

 

The consistent view of the apex courts of this Sub-Continent is that not only a gift under Mohammadan Law but also under the Transfer of Property Act, a gift must be coupled with acceptance and delivery of possession of the property. Mere registration of such deed of gift is not at all sufficient, something more has to be done for making a valid gift which is lacking in the present case.

 

Bangladesh, represented by the Secretary, Ministry of Housing and Public Works & another   vs Shirely Anny Ansari 6 BLC (AD) 85.

 

Sections 76(6) and 79

 

In terms of section 76(6) of the Evidence Act the deed of conveyance dated 19-8-1965 may be proved by producing the original, or by a copy thereof certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of Bangladesh Consul or diplomatic agent, that the copy has been duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country. Section 79 of the Evidence Act provides that the Court shall presume such certified copy as genuine. Such certified copy of the said deed of reconveyance as produced by the appellant was taken into 'consideration by the Appellate Division as idditional evidence.

 

Rupali Bank Ltd and another vs Shawkat Am Salauddin 10 BLC (AD) 14.

 

Section 90

 

The Courts below were not justified in demanding the proof required in normal case of proof of private document less than 30 years old and this caused a miscarriage of justice. The presumption afforded in section 90 of the Evidence Act is a statutory recognition as to the genuineness of the document, and its execution.

 

Jamir Ali and ors vs Dilfamz Bibi land ors 6 BLC 588.

 

Section 90Explanation

 

Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such to render its origin probable. Therefore, the documents as produced by the plaintiff from his proper custody and to that extent, no objection was raised, therefore it has been admitted that it belonged to the plaintiff.

 

Badal Chandra Das and others vs Amena Khatun 10 BLC 403.

 

Section 90

 

Admittedly, the documents, the Exhibits 1 to 6 are more than 30 years old and coming from the proper custody have certainly carried a legal presumption of due execution and correctness under section 90 of the Evidence Act and the lower appellate Court failed to notice this vital issue and committed flagrant violation of law resulting in miscarriage of justice.

 

Siddiq Ali (Md) alias Abu Siddiq vs Md Harun Mia and ors 10 BLC 492.

 

Section 91

 

The lower appellate Court has rightly observed that a written registered document cannot be altered or varied by oral evidence. It is an established rule of evidence that oral evidence is inadmissible for the purpose either of construing terms of a document or of ascertaining the intention of the parties thereto.

 

Abdul Mannaf vs Joynal Abedin and another 10 BLC 361.

 

Sections 91 and 92

 

The oral evidence is not admissible in varying or contradic ting the recitals contained in the registered sale deed in view of the sections 91 and 92 of the Evidence Act which clearly excludes oral evidence for the purpose of varying or contradicting the terms contained in a registered document. The trial Court has committed wrong and error in granting one-third share to the plaintiffs accepting the oral evidence of the DWs overlooking the provision of sections 91 and 92 of the Evidence Act.

 

Begum Jan and others vs Moklesur Rahman and ors 6 BLC 580.

 

Section 101

 

When the defendants had denied execution of bainapatra, the onus was on the plaintiff to prove it which the plaintiff failed to do so, the High Court Division has rightly found that the learned Subordinate Judge was not correct in coming to the conclusion of genuineness of bainapatra or payment of earnest money or of the delivery of possession and therefore set aside the impugned Judgment and decree of the plaintiff's suit.

 

Gofran Miah (Md) vs Raniza Khatoon and others 6 BLC (AD) 131.

 

Section 101

 

Paintiff has to prove his case independent of the weakness of the defence case. From the materials on record if appears that the plaintiff has failed to prove genuineness of their documents and also their possession which escaped the notice of the High Court Division and it only discussed the evidence of the defence and finding fault dismissed the defence case and restored the decree passed by the trial Court in favour of the plaintiff which is not sustainable.

 

Golzar Ali Pramanik vs Saburjan Bewa and others 6 BLC (AD) 41.

 

Section 101

 

The evidence as adduced by the plaintiffs manifestly proved that they were finantially solvent and they were always ready to deposit the balance consideration money but the defendants produced no materials on record proving the price of the suit property was higher at the relevant time and hence the defendants signally failed to discharge the onus which was heavily on them when the learned trial Judge misdirected himself in placing the onus upon the plaintiffs. It is posited here that inadequacy of price can hardly be a ground for refusing specific performance of contract.

 

Shamsul Huda (Md) and another vs Mahmooda Khatun and others 6 BLC 82.

 

Section 101

 

Decree iri favour of the plaintiff can be awarded only on the strength of the plaintiff's case and not on the weakness of the defendant's case.

 

 Fatema Khatun vs Fazil Mia 6 BLC 241.

 

Sections 101

 

It is a cardinal principle of law that the plaintiff has to prove his case independent of the weakness or defects of defendant's case. Even if a foreign judgment is admissible in evidence, it does not improve the plaintiff's case as he has hopelessly failed to prove the alleged agreement for exchange with Ghosh brothers and the plaintiff's suit is barred by limitation as he had been out of possession for long 20 years from 1949 to 1969.

 

Moksed Ali Mondal   vs Abdus Samad Modal 9 BLC (AD) 220.

 

Section 101

 

The High Court Division failed to consider the settled principle of law that in order to get a decree the plaintiff must prove his own case and cannot rely on the weakness of the case of the defendants and in the present case the plaintiff failed to prove even their plaint case and introduced facts which were beyond the plaint.

 

Additional Deputy Commissioner (Rev) and others vs Farhad Begum and ors 9 BLC (AD) 235.

 

Section 101

 

The established rule is that at first plaintiff is to prove his case and then onus shifts upon the defendants to establish their case or to. disprove plaintiff's case.

 

Abu Naser Md Wahidun Nabi vs Balai Roy 10 BLC (AD) 58.

 

Sections 101 and 114(g)

 

It appears that the trial Court gave the finding of the possession of the suit land in favour of the plaintiffs which was not reversed by the appellate Court. It further appears that the DW 1 deposed that they possessed the suit land through bargadars, therefore, it was incumbent upon them to examine the bargadars and for non-examination of the bargadars an adverse presumption can very much be drawn against the defendants under section 114(g) of the Evidence Act.

 

Ramesh Chandra Mondal and ors vs Hemayet All Sheikh and ors 9 BLC 525.

 

Section 103

 

Since the defendants have come up with a specific case, the burden shifts on the defendants to prove their part of the said specific case and the defendant Nos. 1 and 2 haying failed miserably to discharge their onus to prove their part of the case, the defendants are liable to pay the cheque money amounting to taka one lac eighty-five thousand when the defendant No. 1 admitted that he put his signature on the cheque.

 

Shaikh Haji Musa Hakkani vs Kazi Md Abdul Majed and ors 7 BLC 534.

 

Section 103

 

Plaintiff discharged his burden of establishing the fact that defendant sent the rent for the month of May, 1988 after June 15, 1988. It was requirement for the defendant to..: disprove the said fact, but he did not take any step to disprove the oral as well as documentary evidence produced from the side of the plaintiff in assertion of the fact that rent for the month of May, 1988 was sent by money order after June 15,' 1988.

 

Bulbul Begum vs Md Sanwar Belal and anr 8 BLC (AD) 97.

 

Sections 107 and 108

 

The evidence of PWs 1 and 2 that Md Ismail has not been heard of since 24-12-71 which made the section 108 of the Evidence Act applicable as it provides that a person is presumed to be dead if he is not heard of by his family members and relations for more than 7 years when section 107 of the Evidence Act speaks of presumption for continuance of-life for more than 30 years and in the facts and circumstances of the present case section 107 of the Evidence Act has no manner of application.

 

Islamic Foundation Bangladesh vs Firoz Alam & others 6 BLC 599.

 

Section 110

 

Defendant-appellants have failed to prove the acquisition of title by adverse possession establishing the existence of the essential ingredients of section 7(2) of the Non-Agricultural Tenancy Act, 1949. No presumption can be drawn under section 110 of the Evidence Act, 1872 in the absence of those ingredients. Plaintiff-respondent has proved their title by registered deed dated 13-11-7? for valuable consideration which has been believed by the Courts below. Claim of long possession of the defendant-appellants remains precarious because of the finding of title of the suit land in favour of the plaintiff-respondent.

 

Gouri Das and ors vs ABM Hasan Kabir 7 BLC (AD) 140.

 

Section 110—Presumption of title—

 

When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner, presumption of title from possession can arise only when facts disclose no title in any party. In this particular case, the plaintiff-opposite parties have long uninterrupted possession and also have dakhilas and the rent receipts thus follows title. The possession of the plaintiff is not prima facie wrongful and secondly, the title of the defendant is not proved. The plaintiff paid rent by mutating her name and also paying rent to the Municipality and to that extent the defendant did not raise any objection.

 

Badal Chandra Das and others vs Amena Khatun 10 BLC 403.

 

Section 111

 

The question of fiduciary relationship between the executant and the recipient of the deed in question was not raised in the pleading and no evidence was led to that direction proving bonafide or good faith of the transaction as contemplated under section 111 of the Evidence Act. It is the appellate Court who for the first time of its own accord pointed out the said issue which has not been borne out in the pleading and, as such, bereft of any legal consideration. Although section 111 of the Evidence Act provides for special protection to the pardanashin lady so to say old illiterate and village woman but provision of such law is not applicable in the present case.

 

Raoshanara Begum and am vs Sokhina Khatun and ors 10 BLC 48.

 

Section 115

 

Respondent No.4 evidently is junior to the writ-petitioners who are the members of the General Administrative Cadres and they are entitled to promotion according to the joint seniority list prepared in 1991 with all benefits attached to their posts and such benefits cannot be taken away as has been done by the impugned orders as those fail on the doctrine of promissory estoppel.

 

Chairman, Bangladesh Water Development Board, WAPDA & anr vs Kazi Hedaytul Islam and others 6 BLC (AD) 31.

 

Section 115

 

It is by now well settled that consent or waiver cannot give jurisdiction where there is inherent lack or absence of it and in that case the order is a nullity.

 

Registrar, Supreme Court of Bangladesh vsMd Shafiuddin 6 BLC (AD) 141.

 

Section 115

 

Accepting the offer of the petitioner to purchase the property in question the Bhawal Court of Wards Estate filed an application in printing form on 19-1-97 required under section 184(1) of Income Tax Ordinance of 1984 stating that the property in question would be sold to the petitioner at a consideration of Taka three lac and odd which has created promissory estoppel in favour of the petitioner and against the respondents and hence the impugned notice published in the daily newspaper inviting tender for long term lease of the property in question is without any lawful authority and is of no legal effect.

 

Meherunnessa vs Bangladesh and others 6 BLC 209.

 

Section 115

 

The claim of the plaintiff-bank cannot be hit by the Doctrine of Promissory Estoppel as the plaintiff has not asked the defendants to apply for remission of the interest under the Circular dated 7-10-1991 issued by Bangladesh Bank when the said Circular has got no force of law and not binding on the plaintiff-bank and also the said Circular is not a mandatory one but a directory one.

 

Pubali Bank Ltd vs Abdul Kader and anr 7 BLC 656.

 

Section 115

 

The importers "having acted on the promise made"1' by; the appellants under section 25A of thd Act Jto accept the price determined by the Government appointed inspectors the appellants cannot go back on that promise as it was meant to be binding on them. The Appellate Division is in agreement with the decision of the High Court Division that SRO No. 113 dated 11-5-97 cannot affect the vested right of the respondents to be assessed by CRF price.

 

Commissioner of Customs and others vs Monohar AH and 26 others 8 BLC (AD) 87,

 

Section 115

 

When the DW1 admitted in his cross-examination that they knew from monthly statements of jute stock that more than 4,000 bales of jute were used to be stored in the godown but they did not raise any objection resulting thereby they acquiesced the1 excess storage of jute. In such circumstances the repudiation of claim of plaintiff No. 1 because of storage of excess quantity of jute in viola tion of clause 9(a) of the absolute: warranties had no legal basis and was done illegally.

 

Fibre Deals Ltd vs Sadharan Bima Corporation and others 8 BLC 337.

 

Section 115Promissory estoppel—

 

The respondent-Government cannot be allowed to act inconsistently with its promise made by memo dated 10-4-1995 which is binding on it. The Government thus cannot be exempted frorn its liability to carry out its promise given to the petitioner to sell the three-fourth share of the property and by the, doctrine of promisspry estoppel the Government cannot escape from its liability saying that the promise was merely an administrative decision.

 

Asaf-JKhan vs Court of Settlement, First Court & ors 8 BLC 1.

 

Section 115Legitimate expectation

 

The memo dated 10-4-1985 informing the petitioner No. 1 to pay the price of three-fourth share of the property and the resolution of the Abandoned Property Management Board dated 17-12-92 maintaining the earlier decision to sell the three-fourth share of the disputed property to the petitioners gave rise to a legitimate expectation of the petitioners to have completed the, legal formalities for transferring the property in question to them. Subsequent silence; . of, the Government authority amounts1 to denial of such expectation which is unfair. Accordingly, the respondent-government are directed to transfer the three-fourth share of the property in question within 60 days from the date of receipt of the price fixed.

 

Asaf Khan and others vs Court of Settlement, First Court and others 8 BLC I .

 

Section 115

 

The law is well settled that the moment a tenant denies the title of his landlord he forfeits his right to stay in the premises. Moreso, the judgment and decree of the trial for ejectment on the ground of: default in payment of rent and bonafide requirement are borne out by the evidence, oral and documentary, on record which need not require to be interfered.

 

Saifuzzaman (Md) vs, Abdur Rahman 9 BLC (AD) 270.

 

Section 115

 

Respondent having submitted to jurisdiction of arbitrator by filing joint petition and accepting the order of the Court appointing Mr Asaduzzaman as the, sole arbitrator and in participating in arbitration proceeding and in not challenging the authority of arbitrator to pass the award now cannot question the validity of the award. There had been waiver and acquiescence on the part of second party-respondent and the same is completely debarred from raising the question of jurisdiction for the first time in this appeal.

 

A Latif and Company Limited vs Project Director, PL-480, Title 3, LGED & another 9 BLC 271,

 

Section 115

 

It appears that by the earlier SRO,' the Government has made a promise that upon fulfilment of such conditions if the importers import taxicabs they will be given the benefit as mentioned thereirii The petitioners having acted upon accordingly the Government now cannot go back upon it. If they go back it will be inequitable. So it appears that the doctrine of promissory estoppel operates when one of the parties in reliance of the promise made by the other party acts to his detriment and in such case the other party should not be allowed to go back from his promise as the same would cause injustice on the party relying upon the said promise.

 

Cab Express (BD) Ltd vs Commissioner of Customs and others 9 BLC 398.  

 

Section 115

 

Though the circular or administration instructions have been specifically declared as order making rule contained in Memo issued by the authority but the same may not be treated as statutory rules having no statutory backing but no such regular posts being available for regularisation a work-charged employee could not be regularised inasmuch as no such promissory estoppel could be claimed under the circumstances or the Government may be compelled to perform their duties as an obligation in the absence of any such legal footing for the appellant to be accommodated.

 

Abdur Rahman (Md) vs Government of Bangladesh represented by the Secretary, Ministry of LGRD and Co-operatives and another 10 BLC (AD) 179.

 

Section 115

 

The High Court Division finds that the respondent No.l Corporation and the Government are now estopped from denying the petitioners their opportunity to opt for usual retirement as assured them on 17-11-1999. Accordingly, the High Court Division views the impugned notification in Annexure-A to be the product of an opaque process constituting a deviation from a regular practice of prior consultation. The impugned notification as consequently formulated also makes a sudden deviation from the established service and benefit policy enunciated on 17-11-1999 and thereby negates the petitioners' legitimate expectation to be treated fairly and consistently with the notification dated 17-11-1999. In this regard, the High Court Division finds merit in the petitioners' contention that the impugned notification is to be deemed as having been passed without lawful authority and to be of no legal effect.

 

BADC Employees Union and others vs BADC and others 10 BLC 643.

 

Section 116

 

Once the relationship of landlord and tenant is established between the parties, the tenant is estopped from challenging the title of the plaintiff without surrendering possession in view of section 116 of the Evidence Act.

 

Selina Begum vs Azizun Nessa 6 BLC (AD) 115.

 

Section 137

 

It appears that in the absence of cross-examination of the PW and in the absence of contrary being proved by the defendants and in the absence of any legal pleadings having been made by any of the defendants, there is no case on the side of the defendants before the Court.

 

Nazrul Islam (Md) vs NIMMoqbul Hossain and others 10 BLC 319.

 

Section 137

 

Although the evidence of PWs 1 and 3 regarding possession of the land has not been controverted by cross-examining them but OPWs in their statements made positive assertion disputing the statements of PWs 1 and 3. Therefore, it cannot be said that the finding was not based upon non-consideration of the evidence on record, rather, such finding is based on overall consideration of the evidence on record.

 

Majida Khatoon vs Md Mominul Huq and ors 8 BLC 250.

 

Section 138

 

There is no provision in the Evidence Act permitting a witness to be tendered for cross-examination without his being examined in-chief. It is true that in the Sub-continent in criminal cases witnesses are tendered for cross-examination by the accused. This wide misuse of power is without legal sanction and is contrary to law. In fact, such practice is opposed to section 138 of the Evidence Act and the authority is the case reported in AIR 1995 SC 1601. This being the position there is no scope to tender a person for cross-examination by the adversary. Thus, these summons for direction falls to the ground having no legs to stand upon.

 

Akhtaruzzaman Chowdhury and anr vs United Commercial Bank Ltd and others 9 BLC 562.

 

467

EXCISE AND SALT ACT, 1944

Citation: 18BLD(HCD)54

Subject: EXCISE AND SALT

Delivery Date: 1970-01-01

 

 

EXCISE AND SALT ACT, 1944

(I OF 1944)

 

Section—37

Punishment for violation of the provisions of the Act

The Excise and Salt Act, 1944 and the rules framed thereunder do not authorise the police to seize manually manufactured cigarettes (Bins) on obtaining license under the said Act on the suspicion that those were being marketed by evading payment of necessary leviable excise duty as being without the requisite band-rolls thereon. The police also have no authority to arrest and prosecute any person directly for the alleged violation of the provisions of the Excise and Salt Act for alleged evasion of excise duties. The police can only act in aid of the excise authority when called upon by the former to do so. The seizure of the bins in question and arrest of the accused persons and initiation of the impugned proceeding by lodging an FIR by the police are acts not authorised by law and the same amount to an abuse of the process of the Court and as such the impugned proceeding is liable to be quashed.

Md. Idris Miah alias Idris Ali and others Vs. The State and others, 18BLD(HCD)54

 

468

Excise and Salt Rules, 1944

Citation: 8 BLC 259

Case Year: 1944

Subject: Excise and Salt

Delivery Date: 2018-05-08

Excise and Salt Rules, 1944

 

Rule 10(3)

 

On 30-6-83 the Authority by the SRO amended Rule 10 of the Rules of 1944 and by such amendment period for making demand of the outstanding excise duties and sales tax was raised to 5 years replacing 3 years. The demand that was made by the demand notice dated 26-7-84 in respect of the amount that remained outstanding against the petitioner in respect of the quantity of goods that was taken out from the mills premises on 8-8-79 was made at a time when the same became barred by lapse of time as per Rule 10 of the Rules of 1944 prior to its amendment on 30-6-83. Since the demand of the excise duties and sales tax that was made by the demand notice dated 26-7-84 was not recoverable being barred by time and, as such, action of the respondents, making of demand from the petitioner of the excise duties and sales tax as mentioned in the notice dated 26-7-84 was illegal.

 

Crescent Jute Mills Co Ltd vs Bangladesh 8 BLC 259.

469

Family Courts Ordinance, 1985

Citation: 10 BLC 490, 7 BLC 326, 6 BLC 30

Case Year: 1985

Subject: Family Courts

Delivery Date: 2018-05-08

Family Courts Ordinance, 1985

[XVIII of 1985]

 

Section 5

 

The only ground for condonation of delay is that the petitioner being an employee of Electricity Supply Department, the service of which is declared as essential, it was difficult for him to get leave quickly when needed, is quite cogent ground to condone the delay of 80 days in filing the Family Appeal before the District Judge.

 

Abdur Razzak alias Abdul Razzacjue vs Mohsena Ara Begum and others 10 BLC 490.

                                           

Section 6(l)(a)(b)

 

Since the law provides that the Family Court suit is to be filed in a Court where the wife ordinarily resides and such suit ought to have been filed at Faridpur because admittedly the former wife has been residing at Faridpur and considering the question of cause of action and balance of convenience and inconvenience of the parties ends of justice will be met if the present suit pending in the Court of Assistant Judge and Family Court, Barisal is transferred to a competent Court at Faridpur for trial.

 

Jesmine Akhter and others vs ASM Moniruzzaman (Babu) 7 BLC 326.

 

Sections 9(6) and 16(Ka)

 

Allegation levelled by maternal grandmother of minor boy against petitioner father that the baby was forcibly taken by petitioner from the custody of maternal grandmother cannot be believed as because neither any FIR nor General Diary had been registered with police station or before any law enforcing agency and it also cannot be swallowed that the petitioner along with mastans took the baby forcibly from the custody of maternal grandmother when the third opposite party, the mother of minor boy appears to have waived her right to have the custody of minor boy and kept herself satisfied in respect of entitlement of the custody of the baby with petitioner father. The propriety and legality of the order of Family Judge will be gone into in the miscellaneous appeal and if the order of family Judge is given effect to, the purpose of whole appeal will be frustrated. The appellate Judge was required to stay operation of the said order of the family Judge till disposal of appeal.

 

MA Rajib vs Md Abu Nayees Faruque and others 6 BLC 30.

470

Finance Act, 1997

Citation: 7 BLC 660

Case Year: 1997

Subject: Finance

Delivery Date: 2018-05-08

Finance Act, 1997

[XV of 1997]

 

Section 7

 

Section 7 of the Finance Act, 1997, by which surcharge has been imposed is an Act of the Parliament and it has been determined therein as to when, how and what amount of surcharge will be realised from the goods, imported in Bangladesh. There is no doubt that the Finance Act, 1997 is an Act of the Parliament and the same has the full force of law in levying or collecting taxes or other charges/duties as contemplated in Article 83 of the Constitution and it is not contrary to any provision of the Constitution.

 

F Rahman Oil Mills Ltd vs Commissioner of Customs 7 BLC 660.

471

Finance Act, 1999

Citation: 8 BLC (AD) 59, 8 BLC (AD) 134

Case Year: 1999

Subject: Finance

Delivery Date: 2018-05-08

Finance Act, 1999

[XVI of 1999]

 

Sections 7(3)(17)(18)

 

By amending section 7(1) of the VAT Act by the Finance Act, 1999 the legislature has made the goods other than the goods which are luxurious, non-essential and socially undesirable also liable with Supplemen­tary Duty and in the light thereof the existing 3rd schedule has been substituted by new 3rd schedule by section 7(7) of the Finance Act, 1999 and that the matter of given effect to the new 3rd schedule  gazette notification has been left with the NBR.

 

GM Abdus Sattar vs Ministry of Finance, People's Republic of Bangladesh, and others 8 BLC (AD) 59.

 

Section 7(17) (18)

 

Since the Customs Authority has assessed the duties on the imported goods in due compliance of the provisions of law as mentioned above the Appellate Division is of the view that the contention of the petitioner that levy of Customs duty, supplementary duty and flood surcharge were without jurisdiction is not well founded in law. Since goods on which VAT and supplementary duty are to be levied have clearly been mentioned in the newly inserted 3rd schedule legislated by the Legislature. The Legislature has only left to NBR the matter of notifying the effective date of the newly inserted 3rd schedule of VAT Act and the same can in no way be said legislation by NBR.

 

Salim (Md) vs Commissioner of Customs and another 8 BLC (AD) 134.

 

472

General Agreement of Tariffs & Trade (GATT)

Citation: 6 BLC 357

Subject: General Agreement of Tariffs & Trade

Delivery Date: 2018-05-08

General Agreement of Tariffs & Trade (GATT)

 

Article 2 Clause 3

 

The importers of goods as petitioners filed the respective writ petition challenging the impugned inflated and fictitious CIF price and CRF Certificate endorsed by PSI Agency violating the Customs Act, Pre-shipment Inspection Order, 1999 and GATT Valuation Agreement and sought relief by way of judicial review of the High Court Division. The respondents having not acted in accordance with law and PSI order and acted in excess of the PSI Agency's power conferred under section 25A of the Customs Act and PSI Order 1999 and hence these rules are made absolute directing the department to determine the normal value of the goods imported by the respective petitioner in accordance with law ignoring the arbitrary and fictitious CIF value certified by the PSI Agency.

 

Showkat Ali and 15 others vs Commissioner of Customs and others 6 BLC 357.

473

General Clauses Act, 1897

Citation: 6 BLC 712, 8 BLC 521, 10 BLC 502, 6 BLC 379, 9 BLC 59, 9 BLC 84

Case Year: 1897

Subject: General Clauses

Delivery Date: 2018-05-08

General Clauses Act, 1897

[X of 1897]

 

Section 3(28)

 

The "Local authority" includes a Corporation established by the government under any law. The Bangladesh Fertilizer Chemical and Pharmaceutical Corporation having been established by the government under President's Order No. 27 of 1972 and the genuine Fertilizer Company being a functionary under it, a writ petition under Article 102 of the Constitution is quite maintainable against it.

 

Zaharuddin (Md) vs Bangladesh and others 6 BLC 712.

 

Section 3(28)

 

Since the activities and general affairs of Baitul Mukarram Businessmen Group as a trade organisation are controlled, supervised and adminis­tered by the government, Baitul Mukarram Businessmen Group also must be taken to have been functioning as an instrumentality of the Director of Trade Organisations which is a local authority within the meaning of section 3(28) of the General Clauses Act and also as instrumentality of the government. Hence the act of holding the elections by the Baitul Mukarram Businessmen Group on 2-1-2003 and 18-1-2003 and the publication of their results could very well be said to be an act done in conection with the affairs of the Republic and the writ petition is therefore maintainable.

 

Shafiqiir Rahman (Md) vs Bangladesh and others 8 BLC 521.

 

Section 3(28)

 

The term local authority has been defined in section 3(28) of the General Clauses Act. A local authority is amenable to the writ jurisdiction as provided in Article 102 of the Constitution.

 

Abdus Sabur (Md) vs Rural Electrification Board and others 10 BLC 502.

 

Section 6

 

Admittedly, the petitioner opened the letter of credit on 30-6-97 for import of consignment in question and under section 25A of the Customs Act obtained a pre-shipment inspection certificate and upon arrival of the goods the petitioner submitted the bill of entry for rel as.? of the consignment on payment of Customs duty, VAT and other charges on the basis of CRF but the Customs authority sent the same before the review committee which having found the CRF price being lower than the previous price has cancelled the same by the impugned order. If the CRF could be cancelled as the previous price is higher in that event the provisions of section 25A and Rules framed thereunder would be frustrated. Unless any infirmity required for cancellation of the CRF is available, merely that the CRF is lower than the previous price, could not be a cause for cancellation of CRF. In the instant case, in the absence of any other material contemplated in section 25A of the Customs Act and Rules made thereunder for the purpose of cancellation of CRF the impugned order has been passed without lawful authority.

 

Moonshine Traders vs Commissioner of Customs and others 6 BLC 379.

 

Section 21

 

Since the Letter of Credit was opened during the period when the SRO dated 21-12-95 remained in force containing the item under the Table, the petitioner was bound to comply with the provisios of the said SRO. The argument that the SRO dated 17-6-96 was applied restropectively is of no substance. The petitioner had neither any legitimate expectation nor any vested right in his favour by virtue of SRO dated 4-11-94. The consignment is liable to be assessed on the basis of Tariff value.

 

Sheikh Ahmed vs Commissioner of Customs and others 9 BLC 59.

 

Section 21

 

The SRO No. 215 dated 12-12-95 being issued under section 25A of the Customs Act, 1969 with a view to amend the SRO No. 316 dated 3-11-1994 by the same authority, who is empowered to do so under section 21 of the General Clauses Act.

 

Al-Nazia Establishment vs Commissioner of Customs and others 9 BLC 84.

474

Gift Tax Act, 1990

Citation: 7 BLC 655

Case Year: 1990

Subject: Gift Tax

Delivery Date: 2018-05-08

Gift Tax Act, 1990

[XIV of 1990]

 

Section 4

 

It appears that donor was under the agony of the thought of death. In order to get the benefit of section 4(1?) of the Gift Tax Act, 1990 it is not necessary that the gift must be made on the death bed. Respondent Nos. 2 and 3 erred in law in interpreting section 4(1) of the said Act and illegally rejected the prayer of the petitioner for mutation and therefore the impugned orders are declared to have been passed without jurisdiction and the respondent No. 3 is directed to mutate the name of the petitioner in the records of right in place of the donor.

 

Nazma Begum vs Bangladesh and others 7 BLC 655.

475

Government and Local Authority Lands and Buildings Recovery of Possession Ordinance, 1970

Citation: 10 BLC (AD) 171

Case Year: 1970

Subject: Government and Local Authority Lands and Buildings Recovery of Possession

Delivery Date: 2018-05-08

Government and Local Authority Lands and Buildings

Recovery of Possession Ordinance, 1970

[xxiv of 1970]

 

Section 4

 

It is seen from the materials on record that on receiving the letter of Administrator of Waqfs for eviction of the appellants in the background of the provision of section 64(1) of the Ordinance the cpeputy Commissioner initiated a Miscellaneous Case being Miscellaneous Case No. 28 of 2002 under the provision of the Government and Local Authority Lands and Buildings Recovery of Possession Ordinance, 1970 (Ordinance No. XXIV of 1970). The Miscellaneous Case so initiated by the Deputy Commissioner under the provision of Ordinance No. XXIV of 1970 was not legal.

 

Yousuf (Md) & others vs Administrator of Waqfs, Government of Bangladesh, and others 10 BLC (AD) 171.

476

Government of India Act, 1935

Citation: 10 BLC 524

Case Year: 1935

Subject: Government of India

Delivery Date: 2018-05-08

Government of India Act, 1935

 

Part III

 

It appears that the Executive Authority of the then Government of East Bengal was conscious that. after coming into force of the III Part of the Government of India Act, 1935 Regulation 1 of 1900 lost its force and died its natural death and henceforth no law will be made applicable by publication of gazette notification in the official gazette pursuant to the authority vested in the Governor by Regulation 4(2) of the Regulation 1 of 1900 and that position continued until 10th of January, 1964 when the Constitution (First Amendment) Act 1964, came into force. Therefore, on and from 10th January 1964, the Chittagong Hill Tracts were excluded from the definition of Special and Excluded Areas, in other words, from the "Tribal Areas" within the meaning of Article 242(2) of 1962 Constitution.

 

Rangamati Food Products Ltd vs Commissioner of Customs and others 10 BLC 524

477

Government Servants (Discipline and Appeal) Rules, 1985

 

Government Servants (Discipline and Appeal) Rules, 1985


Rule-2(b)

Petitioner was appointedby the Government the Ministry of Finance under the order of the President-respondentNo. 1 the President of the Taxes Appellate Tribunal Division Bench No. 1Dhaka-respondent No. 1 does not come within the definition "authority' northe respondent No. 1 is a superior officer of the appointing authority in thechain of command-the respondent No. 1 had no jurisdiction to start any departmentalproceeding with regard to the conduct of the petitioner-an action has beentaken in the form of departmental proceeding by the respondent No.1 who is notlegally competent to do that. [Para-8 & 9]

Md. Shahjahan HawladerVs. Bazlur Rahman & Anr. 8 BLT (HCD)-223

 
478

Government Servants (Special Provisions) Ordinance, 1979

Citation: 9 BLC (AD) 212

Case Year: 1979

Subject: Government Servants (Special Provisions)

Delivery Date: 2018-05-08

Government Servants

(Special Provisions) Ordinance, 1979

[XI of 1979]

 

Sections 3(b), 5 and 6

 

The order of dismissal having been made in violation of the provision of section 5 of the Ordinance of 1979 on that score also the same is not maintainable in law.

 

Qamrul Islam Siddiaue vs Saber Ahmed and another 9 BLC (AD) 212.

479

High Court Rules

Citation: 9 BLC 303

Subject: High Court Rules

Delivery Date: 2018-05-08

High Court Rules

 

Chapters-II Part-I—Rule 7

 

In a case where the question of confiscation is involved a Single Bench of the High Court Division can hear such case but in the matter of forfeiture it will be heard by a Division Bench.

 

Mobarak Ullah (Md) and another vs State 9 BLC 303.

480

Income Tax Act, 1922

Citation: 6 BLC 203, 6 BLC 540, 6 BLC 393

Case Year: 1922

Subject: Income Tax

Delivery Date: 2018-05-08

Income Tax Act, 1922

[XI of 1922]

 

Section 10(2)(XI)

 

Section 10(2)(XI) of Banking Ordinance, 1962 authorises the Assessing Officer to examine the accounts as to bad and doubtful debts of the financial institution like the assessee and he is to allow relief if such debts are irrecoverable and has been written off from the books of accounts. As in the instant case the bad and doubtful debt amount having been written off from the books of accounts and the accounts being prepared according to the prescribed form of Banking Companies Ordinance the Assessing Officer acted illegally in not allowing such debts without assigning any reason.

 

Commissioner of Taxes vs Rupali Bank 6 BLC 203.

 

Section 13

 

The power conferred upon the Deputy Commissioner of Taxes to make his own assessment under section 83(2) of the Ordinance rejecting the income and profit disclosed in a tax return by the assessee was not available in the facts and circumstances of the case because there has not been the compliance with the conditions laid down in section 83(1) of the Ordinance as the defects detected by the Deputy Commissioner of Taxes was not brought to the notice of the assessee.

 

No. 10 Biri Company Ltd vs Commissioner of Taxes 6 BLC 540.

 

Section 66(1)

 

It appears that at one stage all the shares of the assessee company were in the hands of a new shareholder on 15-12-80 and the company carried on its business for some time as one man company. As the company was neither dissolved through the process of winding up nor by being struck off by the Registrar in accordance with law during the period it was run as one man company and therefore, the assessee company retained its corporate existence in the eye of law.

 

Rahimafrooz Batteries Ltd vs Deputy Commissioner of Taxes 6 BLC 393.

481

Income Tax Ordinance, 1984

Citation: 6 BLC 518, 6 BLC 563, 6 BLC 628, 6 BLC 574, 7 BLC 125, 6 BLC 540, 6 BLC 584, 6 BLC 626, 9 BLC 674, 6 BLC 393, 7 BLC 712

Case Year: 1984

Subject: Income Tax

Delivery Date: 2018-05-08

Income Tax Ordinance, 1984

[XXXVI of 1984]

 

Sections 2(16), 44(1) and 160

 

The income of the club is exempted from taxation under 6th schedule, Part-A read with section 44(1) of the Ordinance. The Taxes Appellate Tribunal has correctly found that the Dhaka Ladies Club is established wholly and exclusively for charitable purpose and it does not earn any profit and the income of the club is not distributed amongst its members as profits and dividend.

 

Commissioner of Taxes vs Dhaka Ladies Club 6 BLC 518.

 

Sections 17, 18, 96 & 160

 

A business connection of a non-resident involves operations of business carried on partly in Bangladesh and partly abroad. On such cases, the non-resident may only be charged in respect of that amount of profit which accrued or arises to him in Bangladesh. In earlier years also the Bangladesh Railway similarly purchased welding materials from the Head Office of the petitioner company in India but no income was computed on supply of such welding to the Bangladesh Railway by the petitioner company which has totally been ignored both by the DCT and the Appellate Tribunal in estimating net profit @ 12% on supplies of Railway welding materials for such years in question. Both the DCT and the Appellate Tribunal taking an erroneous view of law and facts have most illegally held that earning of income from supply of welding materials are chargeable to income tax when admittedly no business operation took place in Bangladesh so far it relates to supply of goods by the petitioner.

 

India Thermit Corporation Ltd vs Commissioner of Taxes 6 BLC 563.

 

Section 19(9)—Advance of rent cannot be treated as premium—

 

It appears that all the authorities below on the one hand treated the amount in question as advance of rent and on the other treated the same as premium resorting to section 19(9) of the Ordinance treating 1 /5th of the advance of rent as income for the assessment years in question without assigning any reason whatsoever and hence the impugned order cannot be sustained as the amount of advance of rent cannot be treated as premium within the meaning of section 19(9) of the Ordinance.

 

Mujibur Rahman (Md) vs Commissioner of Taxes 6 BLC 628.

 

Sections 29(I)(III)  and 160

 

The positive case of the assessee-applicant is that they had not only borrowed the amount for the purpose of the business but they have also utilised the same for the purpose of- the company. Once capital is borrowed it does not matter whether it has been utilised or not, even then the interest paid thereon the assessee applicant is entitled to deduct such interest from the total income when later decision is to be followed.

 

Abdul Momen Ltd vs Commissioner of Taxes 6 BLC 574.

 

Sections 32, 83(2) and 160(1)

 

No tangible evidence is there to show that the assessee by the said transfer except acquisition of certain shares of the company has gained the amount as shown in the assessment order. Virtually, the transfer made by the assessee and his wife to the company is a kind of investment in their business in terms of having some shares in the company and the assessee cannot be said to have gained anything out of the transaction. By that transfer even if the value of the property is found to be much more than what has been shown in the deed of transfer, the assets of the company may have been increased but the assessee has not gained anything as the transfer did not give rise to any profit or gain. Since the assessee has not earned any profit or gain the Taxes Appellate Tribunal was not justified in upholding the order of assement.

 

Harasat Ullah (Md) vs Commissioner of Taxes 7 BLC 125.

 

Sections 83(1)(2) and 160(1)

 

The power conferred upon the Deputy Commissioner of Taxes to make his own assessment under section 83(2) of the Ordinance rejecting the income and profit disclosed in a tax return by the assessee was not available in the facts and circumstances of the case because there has not been the compliance with the conditions laid down in section 83(1) of the Ordinance as the defects detected by the Deputy Commissioner of Taxes was not brought to the notice of the assessee.

 

No. 10 Bin Company Ltd vs Commissioner of Taxes 6 BLC 540.

 

Sections 84 and 160(1)

 

For the first time before the Appellate Tribunal the assessee agitated the point of export rebate which has not been considered by the Tribunal which involves investigation of question of facts and cannot be determined under the advisory jurisdiction. Accordingly, the case was sent back before the Tribunal to examine the questions whether the assessee in the facts and circumstances of the case is entitled to get the benefit of export rebate and whether there is any basis for determining the cost at one-third of the gross profit.

 

Style Apparels Industries Ltd vs Commissioner of Taxes 6 BLC 584.

 

Section 160

 

It appears that the authorities declined to interfere with those disallowances without being able to point out any defect in the books of accounts and hence the impugned order suffers from patent infirmities and the same cannot be sustained in law.

 

Crescent Jute Mills Limited vs Commissioner of Taxes 6 BLC 626.

 

Section 160

 

An estimated liability under a scheme of gratuity, if properly ascertained and its present value is discounted, is deductible from the gross receipts while preparing the profit and loss account. The Appellate Tribunal was not legally justified in affirming the disallowance of gratuity amounting to Taha 26,38,462 which was ascertained on actuarial basis and it was a definite ascertainable sum.

 

Pfizer Laboratories (Bangladesh) Ltd vs Commissioner of Taxes 9 BLC 674.

 

Section 161

 

It appears that at one stage all the shares of the assessee company were in the hands of a new shareholder on 15-12-80 and the company carried on its business for some time as one man company. As the company was neither dissolved through the process of winding up nor by being struck off by the Registrar in accordance with law during the period it was run as one man company and therefore, the assessee company retained its corporate existence in the eye of law.

 

Rahimafrooz Batteries Ltd vs Deputy Commissioner of Taxes 6 BLC 393.

 

Section 160(1)

 

It appears from the assessment order of the DCT that the assessee has received Taka 2,25,000 from her sister who is an assessee of another circle which is not denied by anybody and it has not been said that for the first time the donor has become the assessee for the purpose of validating the gift. Learned Assistant Attorney-General could not show any notification or direction of the National Board of Revenue upon which the gift was disallowed. As the gift has been supported by an affidavit and based upon the income 'tax record and there was no material contrary to that, the Tribunal was not justified to maintain the disallowance.

 

Habiba Akhtar vs Commissioner of Taxes 7 BLC 712.

482

Industrial Relations Ordinance, 1969

Citation: 8 BLC 42, 6 BLC 484, 8 BLC (AD) 99, 9 BLC 316, 9 BLC (AD) 209, 6 BLC 718, 10 BLC 485,

Case Year: 1969

Subject: Industrial Relations

Delivery Date: 2018-05-09

Industrial Relations Ordinance, 1969

[XXIII of 1969]

 

Section 2(XXIII)

 

Bangladesh Agri­cultural Development Corporation of which the petitioner is a store-keeper which cannot be termed as a commercial establishment or industrial establishment for which the contention of the learned Advocate for the respondent that the petitioner being a worker cannot file the writ petition is not acceptable. Owing to non-service of a copy of the inquiry report upon the petitioner either along with the second show cause notice or thereafter, being the admitted position, the petitioner was seriously prejudiced in representing the case and this infringement of the rules of natural justice has rendered the order of dismissal illegal.

 

Sayeedul Huq Bhuiyan (Md) vs Chairman, BADC and others 8 BLC 42.

 

Section 7(2)

 

There is no materials showing support of 30% workers in the establishment. It appears that the finding of the Labour Court is mere surmise based on no materials on record and as such the impugned judgment and order of the Labour Court suffers from legal infirmity and it is liable to be set aside as the respondent No. 2 union has failed to fulfil the requirement of provision of section 7(2) of the Industrial Relations Ordinance, 1969.

 

Naogaon Zilla Motor Sramik Union vs Chairman, Labour Court and others 6 BLC 484.

 

Sections 7A(l)(b), 10(2) and 11

 

As it appears from the record that at the instance of the appellant the respondent No. 3 filed the Trade Union Case and it is only the appellant who, in fact, became aggrieved by the judgment and order of the Labour Court in rejecting the application filed by the respondent No. 3 under section 10(2) of IRO. It appears that under section 11 of the IRO appeal lies merely against an order of cancellation of registration under section 10 of IRO and no appeal lies against an order of rejecting of an application for cancellation of a registration of Trade Union and thus there being no scope of any appeal before the Labour Appellate Tribunal the appellant was entitled to invoke writ jurisdiction. There is no provision in the IRO to the effect that a Trade Union does not cease to exist due to retrenchment of its workers or the workers retain the membership of their union and it also appears the provisions of section 7A(l)(b) of IRO do not provide so. The Trade Union Case is allowed.

 

Standard Match Factory Ltd vs Chairman, First Labour Court and ors 8 BLC (AD) 99.

 

Sections 8, 9 and 10

 

The registration of the trade union was obtained by fraud and misrepresentation of facts as contended by the learned Advocate for the petitioner cannot be taken into consideration while sitting under writ jurisdiction as it involves disputed questions of fact. The High Court Division is of the view that the Registrar has not violated any provision of law in registering Rajshahi Zilli Truck Sramik Union as a trade union issuing registration certificate. The Labour Court is the proper forum to adjudicate the matter whether the registration was obtained by practicing fraud or by misrepresentation of facts and decide whether the registration of the trade union shall be cancelled or not while disposing of the IRO Case No. 28 of 2002.

 

Sadekul Islam (Md) vs Registrar of Trade Unions and others 9 BLC 316.

 

Sections 10, 13 and 21

 

The High Court Division referred to section 30 of the Trade Unions Act, 1965 which was a repealed law and the Registrar of Trade Unions, has no authority to issue a certificate to a particular committee as a genuine committee declaring another committee to be a valid one.

 

Sultan Ahmed Talukder and another vs Registrar of Trade Unions and others 9 BLC (AD) 209.

 

Section 34

 

There is no law which guaranteed or secured the right of an employee not to be promoted or upgraded. They could very well refuse to accept the promotion or upgradation and if they so desire quit but they could not as of right continue to hold the existing post and that the first party before the Labour Court had no right guaranteed or secured by or under any law or award or settlement so as to enforce under section 34 of the IRO and the IRO cases ought not to have been entertained by the Labour Court and that the upgradation/prornotion was given to prevent the first party from carrying on their union activities is also without any material basis. The contention that the promotion/upgradation was designed to restrain respondent No. 2 from carrying on their trade union activities cannot be accepted because the upgradation was made to implement the scheme of the Corporation and its implementation was not confined only to the petitioner's mill and there is no denial that the policy was implemented only in the mills in question.

 

BSFIC and another vs Chairman, Second Labour Court, Dhaka & anr 6 BLC 718.

 

Section 34

 

Determination of the age of the petitioner is not a right secured or guaranteed within the meaning of section 34 of the Industrial Relations Ordinance, 1969.

 

Mozammel Haque Chowdhury (Md) vs Chairman, Labour Court and another 10 BLC 485.

483

Insurance Act, 1938

Citation: 9 BLC 632

Case Year: 1938

Subject: Insurance

Delivery Date: 2018-05-09

Insurance Act, 1938

[IV of 1938]

 

Section 105

 

An offence of cheating or an offence under section 406 of the Penal Code being distinct from an offence under section 105 of the Insurance Act can be legally tried by an ordinary Criminal Court under the Code of Criminal Procedure.

 

AKM Mozammel Hossain Belal vs State 9 BLC 632.

484

Interpretation of Statute

Citation: 6 BLC 101, 7 BLC 142, 6 BLC 451, 8 PLC 329

Subject: Interpretation of Statute

Delivery Date: 2018-05-09

Interpretation of Statute

 

For ascertaining the real intention of the legislature the Court, among other things, may consider the nature and the design of the statute, the consequences which would follow from construing it one way or other and whether the object of the legislation will be defeated by a particular construction.

 

Forkan AH (Md) vs Bangladesh, & others 6 BLC 101,

 

 

The cardinal principle and the mandatory provision in interpreting a section of a particular statute or the rule framed thereunder is that the proviso controls and restricts the main section or the main rule, and proviso to a section or to a rule is to be regarded to have an over­riding effect and control over the whole section or the rule.

 

AR Yusuf vs Commissioner of Taxes 7 BLC 142.

 

The intention of Legislature in bringing about amendment in Ordinance No. LI of 1983 by Amending Act XX of 1993 was to disqualify a person from holding any public office when he stood as defaulter on the day of election and not on the day of presenting nomination paper. The disqualification incurred by petitioner on the day of nomination stood wiped out, annulled and obliterated on the day of scrutiny.

 

Shafiqul Islam (Md) vs Md Imdadul Hoque arid others 6 BLC 451.

 

The canon of interpretation is that a fiscal statute must be strictly construed and if a provision is capable of two or more interpretations the one which is more favourable to the citizen must be accepted. Commissioner Customs.

 

Excise & VAT vs Customs Excise & VAT Appellate Tribunal 8 PLC 329.

485

Investment Board Act, 1989

Citation: 9 BLC 601

Case Year: 1989

Subject: Investment Board

Delivery Date: 2018-05-09

Investment Board Act, 1989

[XVII of 1989]

 

Sections 11(4)(9) and 15

 

Even though the petitioners failed on all scores in this writ petition but succeeded on the welfare score which is the basic norm of 'social justice' as enshrined in the preamble and under Article 8 of the Constitution without rendering effective assistance and making offer to the company for manufacturing alternative 'non-alcoholic products, cancellation of the registration of the company was not proper. The Rule was made absolute on the terms that the industrial concern would manufacture such drink, for internal consumption, permissible under the law of the country, but not "Crown" and "Hunter or any alcoholic beverage, with due clearance from the authority concerned, if they so wish and the Board of Investment will render necessary assistance to the industry concerned for manufacturing and marketing of such products.

 

Crown Beverage Ltd and another vs Board of Investment and others 9 BLC 601.

486

Jatiya Bishwabiddalay Governing Body Rules, 1994

Citation: 7 BLC 584

Case Year: 1994

Subject: Jatiya Bishwabiddalay Governing Body

Delivery Date: 2018-05-09

Jatiya Bishwabiddalay Governing Body Rules, 1994

 

Rule 13(2) (Uma)

 

Neither the Ministry of Education nor the Director General of Intermediate and Higher Education Directorate, Bangladesh has got any authority, in view of the Governing Body Rules of 1994, directing the Principal of the said affiliated college to reinstate the said professor and to pay him all arrear pay.

 

Sadruddin Ahmed vs Director General, Intermediate and Higher Education Directory Dhaka and ors 7 BLC 584.

487

Karigori Shikkha Board Integrated Discipline Rule, 1993

Citation: 6 BLC 722

Case Year: 1993

Subject: Karigori Shikkha Board Integrated Discipline

Delivery Date: 2018-05-09

Karigori Shikkha Board Integrated

Discipline Rule, 1993

 

Rules 1.5 & 3.2

 

Respondent No. 3 cancelled the examination of the petitioners without any basis violating the provisions of Rules 1.5 and 3.2 of the Rules of 1993 and they were illegally debarred from appearing at the examination for one year. Accordingly, respondent No. 3 was directed to publish the result of the petitioners in accordance with law and to allow the petitioners to sit at the examination for the next session.

 

Sharif Mahmud Masum & ors vs Bangladesh and others 6 BLC 722.

488

Land Acquisition Act, 1894

Citation: 9 BLC (AD) 205, 10 BLC 298

Case Year: 1894

Subject: Land Acquisition

Delivery Date: 2018-05-09

Land Acquisition Act, 1894

[I of 1894]

 

Sections 3(a), 23 and 24

 

The definition of land as given in the Act is not limited to land alone but it includes benefit arriving out of it and things attached to the earth. The compensation is to be assessed both for the movable and immovable properties. The land acquired does not mean the land simpliciter, but also includes benefit arising out of the land, things attached to the earth or permanently fastened to anything attached to the earth and, in that state of the matter, in assessing statutory compensation @ 15% in respect of acquired land the arbitrator has not committed any error of law.

 

Government of Bangladesh, represented by DC vs Anwara Hug, and ors 9 BLC (AD) 205.

 

Section 23(2)

 

It appears from the oral and documentary evidence on record that the appellant has rightly claimed compensation at the rate of Taka nine lac per acre but the lower Court wrongly assessed the case land at the rate of Taka sixty thousand per acre. The valuation assessed for the mango trees and those of other trees have got no conformity with the evidence on record. The amount claimed by the appellant as loss of annual income is quite reasonable. The claim of 15% additional compensation under section 23(2) of the Land Acquisition Act, 1894 is in accordance with law.

 

Mozlema Khatun and others vs Bangladesh 10 BLC 298.

489

Land Appeal Board Act, 1989

Citation: 6 BLC 436, 8 BLC 453

Case Year: 1989

Subject: Land Appeal Board

Delivery Date: 2018-05-09

Land Appeal Board Act, 1989

[XXIV of 1989]

 

Sections 3, 5, 7, 8 and 17(3)

 

The moot point is whether notwithstanding the provision of the Chittagong Hill Tracts Regulation, 1900 the Land Appeal Board Act, 1989 and the rules made thereunder shall apply to Chittagong Hill Tracts or not. As the Chittagong Hill Tracts Regulation, 1900 has got no special status or sanctity which can be subject to any law passed by the Parliament. It is a territory like any other territory of Bangladesh. The existence of Chittagong Hill Tracts Regulation, 1900 is like any other law of the country and subject to law passed by the Parliament. Section 3 of the Land Appeal Board Act, 1989 provides that the provisions of the Act and the rules made thereunder will prevail over any existing law and therefore, in case of any conflict the provisions of the Act will prevail. The Constitution of Bangladesh is of unitary type providing no special status to any territory including Chittagong Hill Tracts and hence the law of Bangladesh is applicable to Chittagong Hill Tracts also. Hence, the respondent 1, Land Appeal Board, has jurisdiction to hear the appeal against or reverse the judgment and order passed by the Commissioner, Chittagong Division in respect of khas land of the Chittagong Hill Tracts in accordance with the provision of Land Appeal Board Act, 1989 and the rules framed thereunder notwithstanding with the provision of the Chittagong Hill Tracts Regulation, 1900.

 

Bikram Kishore Chakma vs Member, Land Appeal Board and others 6 BLC 436.

 

Section 5

 

The Land Appeal Board has no jurisdiction to hear appeal/revision in respect of matters arising out of judgment and order passed by the Deputy Commiss-ioner and Divisional Commissioner in Civil suits and the power of revision lies with the Government. But the Government by specific order may delegate the power to the Land Appeal Board under section 5 of the Land Appeal Board Act, 1989.

 

Abu Taker (Md) and others vs Land Appeal Board and others 8 BLC 453.

490

Land Appeal Board Rules, 1990

Citation: 8 BLC 453

Case Year: 1990

Subject: Land Appeal Board Rules, 1990

Delivery Date: 2018-05-09

Land Appeal Board Rules, 1990

 

Rule 3

 

The Land Appeal Board has no jurisdiction to hear appeal revision in respect of matters arising out of judgment and order passed by the Deputy Commis­sioner and Divisional Commissioner in Civil suits and the power of revision lies with the Government. But the Government by specific order may delegate the power to the Land Appeal Board under section 5 of the Land Appeal Board Act, 1989.

 

Abu Taker (Md) & ors vs Land Appeal Board & ors 8 BLC 453.

491

Land Management Manual

Citation: 8 BLC 148

Subject: Land Management Manual

Delivery Date: 2018-05-09

Land Management Manual

 

Article 240

 

As both the courts below having concurrently found that the plaintiff is patni of the suit Ferry Ghat it was obligatory on the part of the defendant to give a chance to the plaintiff-petitioner to take lease of the suit Ferry ghat. But admittedly, the District Council did not give any chance or scope to the plaintiff to approach it for taking lease of the suit Ferry Ghat and thereby the defendant failed to follow the instructions .as contained in the Land Management Manual as it has the force of law in view of the principle of law enunciated by the Appellate Division in the case of Sharping Matshajibi Samabaya Samity Ltd. But the appellate Court did not at all consider such instructions and thereby committed error of law in dismissing the suit on the wrong view that the plaintiff had no locus standi to bring the suit.

 

Hiren Ghat Majhi vs Chairman, Zilla Parishad and DC, Natore 8 BLC 148.

492

Land Reforms Ordinance, 1984

Citation: 21 BLD(HCD)223, 21 BLD (HCD) 244.

Subject: Land Reforms

Delivery Date: 1970-01-01

 

 

Land Reforms Ordinance, 1984

 

Section—6

The proviso to section 6 of the Ordinance provides that this section shall not be a bar against acquisition of a homestead under any law. A decree in a suit for declaration of title and recovery of possession of homestead land passed by a civil court cannot be rendered nugatory by application of section 6 of the Ordinance.

Md Abdus Sobhan Sheikh Vs Md Jobed Ali Sheikh and others, 21 BLD(HCD)223

 

Section—6

Section 6 of the Ordinance bars legal process in respect of any land within rural area which is being used as a homestead by its owner.

Abul Kashem Gazi & ors. Vs Sheikh Nazrul Islam & ors, 21 BLD (HCD) 244.

 

493

Law Reforms Ordinance, 1978

Citation: 10 BLC 148, 9 BLC 501

Case Year: 1978

Subject: Law Reforms

Delivery Date: 2018-05-09

Law Reforms Ordinance, 1978

[XLIX of 1978]

 

Section 3

 

The legal position as it stands now is that the Original Side Rules framed by the Calcutta High Court under clause 37 of Letters Patent, 1865 have not been preserved by the Law Reforms Ordinance, 1978 which repealed Letters Patent, 1865. The Original Side Rules have died in 1978 and therefore have no existence in the eye of law since 1978.

 

Sonali Bank vs Bengal Liner Ltd and others 10 BLC 148.

 

Section 3

 

The plaintiff filed an application for permission to put in the requisite after condoning the delay for drawing up the decree in pursuance of the judgment and order passed in the Admiralty suit. On a perusal of the application and on consideration of the submission it brooks no controversy that the said application is founded on Rule 27 of the Original Side Rules as-contained in Chapter XVI. But the Original Side Rules are no more alive. The Original Side Rules of the Calcutta High Court was framed under clause 37 of the Letters Patent, 1985 with the introduction of the Law Reforms Ordinance, 1978 the Letters Patent has been repealed by section 3 of the said Ordinance. On a scrutiny of the Law, Reforms Ordinance, 1978, it is found that the Original Side Rules framed by the Calcutta High Court under Clause 37 of Letters Patent, 1865 have not been preserved by the Law Reforms Ordinance, 1978. Thus the Original Side Rules died its natural death with promulgation of the Law Reforms Ordinance, 1978. Therefore, there can be no manner of recourse to the Original Side Rules in any matter now.

 

Bangladesh Inland Water Transport Corporation vs MV Helal Kamal and others 9 BLC 501.

494

Letters Patent, 1865

Citation: 10 BLC 148, 9 BLC 501

Case Year: 1865

Subject: Letters Patent

Delivery Date: 2018-05-09

Letters Patent, 1865

 

Clauses 12, 13 and 37

 

The legal position as it stands now is that the Original Side Rules framed by the Calcutta High Court under clause 37 of Letters Patent, 1865 have not been preserved by the Law Reforms Ordinance, 1978 which repealed Letters Patent, 1865. The Original Side Rules have died in 1978 and therefore have no existence in the eye of law since 1978.

 

Sonali Bank vs Bengal Liner Ltd and others 10 BLC 148.

 

Clause 37

 

The plaintiff filed an application for permission to put in the requisite after condoning the delay for drawing up the decree in pursuance of the judgment and order passed in the Admiralty suit. On a perusal of the application and on consideration of the submission it brooks no controversy that the said application is founded on Rule 27 of the Original Side Rules as contained in Chapter XVI. But the Original Side Rules are no more alive. The Original Side Rules of the Calcutta High Court was framed under clause 37 of the Letters Patent, 1985 with the introduction of the Law Reforms Ordinance, 1978 the Letters Patent has been repealed by section 3 of the said Ordinance. On a scrutiny of the Law Reforms Ordinance, 1978, it is found that the Original Side Rules framed by the Calcutta High Court under Clause 37 of Letters Patent, 1865 have not been preserved by the Law Reforms Ordinance, 1978. Thus the Original Side Rules died its natural death with promulgation of the Law Reforms Ordinance, 1978. Therefore, there can be no manner of recourse to the Original Side Rules in any matter now.

 

Bangladesh Inland Water Transport Corporation vs MV Helal Kamal 9 BLC 501.

495

Limitation Act, 1908

Citation: 6 BLC (AD) 101, 6 BLC 259, 6 BLC 594, 7 BLC 470, 7 BLC 662, 9 BLC (AD) 51, 9 BLC 12, 10 BLC 304, 10 BLC 490, 8 BLC 274, 7 BLC 50, 7 BLC 470, 8 BLC 337, 9 BLC 81, 10 BLC 361, 8 BLC 255, 10 BLC (AD) 58, 9 BLC 347, 7 BLC 6, 9 BLC (AD) 220, 10 BLC 561, 6 BLC

Case Year: 1908

Subject: Limitation Act

Delivery Date: 2018-05-16

Limitation Act, 1908

[IX of 1908]

 

Section 5

 

More than one year and nine months was consumed to start a part file and the leave petition was filed out of time by 1340 days. Such gross negligence and inordinate delay on the part of Solicitor Wing should not be condoned otherwise the officers of the Solicitor Wing will be encouraged to be more irresponsible and negligent in their official duties.

 

Government of Bangladesh & ors vs Alauddin & ors 6 BLC (AD) 101.

 

Section 5

 

Government explained satisfactorily the delay in filing the Miscellaneous case and accordingly the application made under Order XLI rule 19, CPC allowed by the impugned order calls for no interference.

 

Abul Quasem and others vs Government of Bangladesh 6 BLC 259.

 

Section 5

 

When it is the duty of a Court not to pass any order behind the back of a party which would adversely affect such party and the Court is also obliged to correct its own default, if any, by invoking its inherent power, both the Courts below erred in law resulting in an error in the decision occasioning failure of justice in holding that the delay in making the application under Order IX, rule 13 of the Code could not be condoned in the absence of an application under section 5 of the Limitation Act.

 

Habibur Rahman & others (Md) vs MA Rashid and others 6 BLC 594.

 

Section 5

 

As there was no explanation for condoning the delay of the period after obtaining the certified copy and before filing the appeal before the appellate Court the discretion had been exercised by the learned Judge in the absence of any explanation for a specified period of delay was a perverse exercise of discretion.

 

Abdul Jalil vs Government of Bangladesh and others 7 BLC 470.

 

Section 5

 

Defendant-opposite parties appeared in the suit and took several adjournments for filing written statement and ultimately defendants did not take any steps as a result of which the suit was decreed ex parte. Defendants filed application under Order IX, rule 13, CPC which became time barred by 182 days. Under Article 164 of the Limitation Act, the period of limitation is 30 days for an order to set aside a decree passed ex parte. Since the defendant Government took several adjournments for filing written statement it is neither believable nor acceptable that the government pleader and the defendant would not know the subsequent fixed dates. Learned Additional District Judge neither passed any specific order for condonation of the delay nor did he allow the application for condonation of delay nor did he give any finding as to the sufficient cause for condoning the delay and hence the impugned judgment is set aside.

 

Begum Meherunnessa vs Secretary, Ministry of Public Works and Urban Development, Dhaka and ors 7 BLC 662.

 

Section 5

 

There has been a delay of 542 days in filing the revisional application by the appellant. In the background of the provision of law the suit filed by the respondents and decreed by the Courts below was being totally noh-entertainable by the civil Court, the High Court Division was required to exercise its discretionary jurisdiction to correct the gross error committed by the Courts below. The High Court Division was not correct in refusing to condone the delay and consequent thereupon in not entertaining the revisional application.

 

Director of Housing and Settlement vs Abdul Majid Howlader and ors 9 BLC (AD) 51.

 

Section 5

 

It appears that the opposite parties did not know exactly the correct number of the days of delay and the learned District Judge also failed to apply its judicial mind in finding out the exact number of days of delay in passing the impugned order. The learned District Judge committed an error of law in condoning the delay which was not sufficiently explained by the appellant-opposite parties as the exact number of days of delay was not correctly stated and that this has resulted in an error in the decision occasioning failure of justice.

 

M Saleem Ullah vs Dhaka City Corporation represented by Mayor and others 9 BLC 12.

 

Section 5

 

As the application is not bonafide and the statements made in the application explaining the delay being malafide and far from satisfactory and tainted with suppression of facts the petitioner is not entitled to get discretionary relief of the Court. Accordingly, the Rule is discharged with costs.

 

Government of Bangladesh, represented by the SP vs Md Moslehuddin Ahmed & others 10 BLC 304.

 

Section 5

 

The only ground for condonation of delay is that the petitioner being an employee of Electricity Supply Department, the service of which is declared as essential, it was difficult for him to get leave quickly when needed, is quite cogent ground to condone the delay of 80 days in filing the Family Appeal before the District Judge.

 

Abdur Razzak alias Abdul Razzaque vs Mohsena Ara Begum and others 10 BLC 490.

 

Section 14

 

It appears that although the appeal was filed in a wrong forum and even after the dissmissal and return of the memorandum of appeal no step was taken by the plaintiff-opposite parties but the delay of 2335 days in filing the instant appeal has been caused due to the circumstances beyond the control of the1 petitioners and for ends of justice such delay has been condoned.

 

Suruj AH (Md) and others vs Md Rahmatullah and others 8 BLC 274.

 

Sections 14 & 29

 

According to the provision of section 196D of the Customs Act, sixty days' limitation shall have to be computed from the date when the notice of the impugned order is served upon the petitioner. Accordingly there has been a delay of 28 days in preferring the appeal. Section 29(2) does not say that section 14, like sections 4, 9 to 18 is excluded in all cases governed by the Special Law, rather it says that these sections are applicable, but only "in so far as they are not expressly excluded" by the Special Law. In other words, unless application of these sections is not excluded in express words and language, they shall apply. The relief as sought under section 14 of the Limitation Act, is, according to the language as employed in that section, not for condonation of delay, it is for exclusion of the time spent in a wrong forum. Under section 14 of the Limitation Act the Court cannot exercise its discretionary power to condone the delay or extend the time for preferring the application or appeal as the Court can do under section 5 of the Limitation Act on being satisfied on the cause shown. If on fact it is found that the litigant party has acted in good faith and perused the same remedy in a wrong forum with due diligence, the court shall exclude the time in computing the period of limitation.

 

Shamsul Hoque vs Customs, Excise and VAT Appellate Tribunal & another 7 BLC 50.

 

Article 52

 

As there was no explanation for condoning the delay of the period after obtaining the certified copy and before filing the appeal before the appellate Court the discretion had been exercised by the learned Judge in the absence of any explanation for a specified period of delay was a perverse exercise of discretion.

 

Abdul Jalil vs Government of Bangladesh and others 7 BLC 470.

 

Article 86

 

Although the suit was filed within the period of limitation under Article 86 of the Limitation Act still it is liable to be dismissed as the plaintiffs failed to file the suit within the stipulated period as specifically mentioned in the policy document.

 

Fibre Deals Ltd vs SBC and others 8 BLC 337.

 

Article 110

 

In the Civil Revision case presented against the appellate decree; the plaintiff did not obtain any order of stay staying further proceeding of the money suit. So, after 18-7-88 as there was no stay operating the plaintiff was free to make the application for amendment for adding any claim to the relief already made in the suit. In the circumstances, the claim for further damages made beyond three years of the application for amendment already became barred.

 

Mirza Fashiul Alam and others vs Sonali Bank and ors 9 BLC 81.

 

Article 113

 

Article 113 of the Limitation Act deals with the provision for filing suit for specific performance of contract within the prescribed period of 3 (three) years. In the instant case when it is found that the plaintiff's cause of action in filing the suits arose on 31-7-85 on refusal of the defendant 1 to execute sale deeds pursuant to agreements and the instant suit being filed on 9-9-85, that is, well within 3 years from the aforesaid date of refusal, the suit is not barred by limitation.

 

Abdul Mannaf vs Joynal Abedin and another 10 BLC 361.

 

Article 120

 

It is the plaint as a whole which is to be considered and not the terminology or for that matter a few stray references. Cause of action of a suit arises when right of a plaintiff is denied or invaded by the other side and the suit for declaration of title on a property will be well within time if it is laid within the period of six years as prescribed under Article 120 of the Limitation Act.

 

Hasenuddin (Md) vs Bangladesh, and others 6 BLC 54.

 

Article 120

 

Limitation in filing the suit started running from the date of given cause of action. Plaintiff's cause of action arose on 10-4-75 when she came to know about the lease granted by the Government in favour of the defendant No. 2 and, as such, it cannot be said that the suit was barred by limitation because it was filed in 1975. Moreso, mere knowledge about wrong recording of SA khatian does not give rise to the cause of action to bring the suit.

 

Karimon Nessa vs Somb Ali 8 BLC 255.

 

Article 120

 

The plaintiff prayed for declaration of title stating that his cause for seeking such relief arose on 27-10-1969. The suit was filed on 3-9-1976. The relief so sought was barred in view of the provision of Article 120 of the Limitation Act. The other relief, that is relief b(l) was also barred under Article 120 of the Limitation Act.

 

A Abu Naser Md Wahidun Nabi vs Balai Roy 10 BLC (AD) 58.

 

Article 122

 

Institution of the previous Suit cannot be a ground for treating the present suit as barred by limitation under Article 122 of the Limitation Act. Although the appellate Court affirmed the decision given by the trial Court in respect of title. and possession of the plaintiff in the suit land yet he dismissed the suit merely on the ground of limitation on misconception of the provision of law as embodied in both Article 122 of the Limitation Act as also of the expression used in Order XXIII, rule 1 of the Code of Civil Procedure.

 

Abdul Haque and another vs Shone Ali alias Moulana Shamsul Haque and others 9 BLC 347.

 

Article 142

 

On a comparative study and assessment of the evidence, both oral and documentary, of the parties it appears that plaintiff failed to bring home the case of its continuous possession on the suit property from the year 1925 and alleged date of dispossession by defendants in the month of July, 1961. Plaintiff's suit thus, stood barred by limitation.

 

Fatema Khatoon and another vs Narasing Jiew Idol and others 7 BLC 6.

 

Article 144

 

Since the plaintiff-petitioner in Civil Revision No. 264 of 2000 has been able to prove her possession in the suit land for more than 12 years, she acquired a good title by adverse possession entitling her to get a decree in Title Suit No. 243 of 1997.

 

Kajol Das and others vs Manowara Begum alias Marium Begum and ors 8 BLC 411.

 

Article 144

 

It is a cardinal principle of law that the plaintiff has to prove his case independent of the weakness or defects of defendant's case. Even if a foreign judgment is-admissible in evidence, it does not improve the plaintiff's case as he has hopelessly failed to prove the alleged agreement for exchange with Ghosh brothers and the plaintiff's suit is barred by limitation as he had been out of possession for long 20 years from 1949 to 1969.

 

Moksed Ali Mondal vs Abdus Samad Modal 9 BLC (AD) 220.

 

Articles 144 & 149

 

Considering the oral evidence of PW 4, the record keeper, who also brought the volume, the appellate Court correctly arrived at a conclusion that the plaintiffs were entitled to have a decree for declaration of title by way of adverse possession against the defendant. The plaintiffs have constructed house in the disputed property and the same has not yet been settled to anybody by the defendant Government, who also failed to prove that after 1318 BS the plaintiffs were not in possession of the suit property. The notice for eviction also proves that the plaintiffs are in possession in the suit property. Accordingly, the Rule is discharged.

 

Government of Bangladesh vs Zahura Bewa andors 10 BLC 561.

 

Article 149

 

As there is corroborative evidence of possession of plaintiffs' side over the suit land for more than 60 years which is the legal requirement for claiming title by way of adverse possession against the Government and the learned Assistant Judge rightly discussed the evidence on record and decreed the suit in favour of the plaintiffs when the judgment of the learned Subordinate Judge is not a proper judgment of reversal as he has not discussed the evidence on record and thereby failed to discharge his duties as an appellate Court which is the final court of fact.

 

Waziul Bashar (Md) and another vs Khaja Ahmed & others 6 BLC 124.

 

Article 149

 

In a suit for declaration of title by way of adverse possession the plaintiffs claim that they have been possessing the suit land for 86/87 years by constructing houses thereon and the Court of appeal below which is the final court of fact found on consideration of both oral and documentary evidence the right, title and possession of the plaintiffs in the suit land and the High Court Division also found that there was no error occasioning failure of justice in the impugned judgment for which no interference is called for.

 

Government of Bangladesh represented by DC, Rajshahi vs Zahura Bewa and others 10 BLC (AD) 150.

 

Article 164

 

From a conjoint reading of Order IX, rule 13 of the Code and Article 164 of the Limitation Act it reveals that if summons was not duly served upon defendant or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the ex parte decree and period of limitation for presenting an application is 30 days from the date of decree or from the date of knowledge of the decree.

 

Abu Mohammad Yousuf vs Basiran Nessa and others 6 BLC 163.

 

Section 164

 

Defendant-opposite parties appeared in the suit and took several adjournments for filing written statement and ultimately defendants did not take any steps as a result of which the suit was decreed ex parte. Defendants filed application under Order IX, rule 13, CPC which became time barred by 182 days. Under Article 164 of the Limitation Act, the period of limitation is 30 days for an order to set aside a decree passed ex parte. Since the defendant Government took several adjournments for filing written statement it is neither believable nor acceptable that the government pleader and the defendant would not know the subsequent fixed dates. Learned Additional District Judge neither passed any specific order for condonation of the delay nor did he allow the application for condonation of delay nor did he give any finding as to the sufficient cause for condoning the delay and hence the impugned judgment is set aside.

 

Begum Meherunnessa vs Secretary, Ministry of Public Works and Urban Development, Dhaka and ors 7 BLC 662.

 

Article 169

 

As the Miscellaneous case was filed within 30 days from the date of the decree in appeal it cannot be at all held that Miscellaneous case stood barred by limitation.

 

Hosne Ara Jalil vs Abdur Rab and others 6 BLC 130.

 

Article 173

 

Mere registration of case in year 1995 cannot make opposite parties out of Court on point of limitation when petition under Order XLVTI, rule 1 and section 151 of the Code had been presented on 2-1-93 within period of limitation fixed by law which is 90 days as provided in Article 173 of the Limitation Act.

 

Waliullah vs Hasina Begum & ors 8 BLC 694.

 

Article 182

 

Their Lordships of our Appellate Division have observed in a case that Article 182(2) of the First Schedule of the Limitation Act is the earliest period prescribed and section 48, CPC which prescribed the maximum period of limitation. If the execution petition is hit by any of the two provisions it is to fail. But it has not been stated clearly in the said case as to whether the principle adopted therein is also applicable in the case of partition decree or not. There are some differences in between decree of partition and other decrees and execution thereof. One of the Execution cases was disposed of during the pendency of the Execution case in question, that is, at the time of filing the execution case the decree was alive and hence the defendant-opposite parties No. 1 to 9 are entitled to get benefit of filing, pendency and disposal of those Execution cases. In order to ascertain the limitations it is to be considered as to when the partition decree became enforceable. In view of the judicial pronouncements of this sub­continent including our apex Court it is settled that decree for partition cannot be enforceable until the same is engrossed on requisite stamp papers. In the present case, neither of the learned Advocates of the parties said anything about the date when the decree is engrossed on requisite stamp papers nor produced any paper in support thereof. In such view of the matter it is difficult to say as to whether the applications for execution was barred by limitation or not.

 

Faruque Reza (Md) and another vs Hosne Ara Begum and others 7 BLC 704.

496

Local Government (Union Parishads) Ordinance, 1983

Citation: 6 BLC 451, 9 BLC 172, 6 BiC (AD) 60, 6 BLC (AD) 151, 8 BLC 76, 7 BLC 337, 7 BLC 739

Case Year: 1983

Subject: Local Government (Union Parishads)

Delivery Date: 2018-05-16

Local Government (Union Parishads)

Ordinance, 1983

[LI of 1983]

 

Section 7(2)(g)

 

Validity of the election of successful candidate for the office of Chairman of Sallabad Union Parishad has been challenged by unsuccessful candidate, first opposite party on laying Election Petition before Election Tribunal on the ground that petitioner was disqualified to seek nomination and election as being a loan defaulter. The amended provision of 1973 mandates that a person shall not be disqualified for nomination and he will be disqualified only for election. Since no disqualification was attached to nomination after the amending Act of 1993, the petitioner was very much qualified to seek election of the office of chairman of the said Union Parishad and his election stands valid and hence the decision of Election Tribunal and Election Appellate Judge that the petitioner was a defaulter in repaying loan on the date fixed for submission of nomination paper and he was disqualified to be elected as chairman under section 7(2)(g) of the Ordinance of 1983 and in declaring the election as a whole void suffered from patent illegality, legal infirmity and flagrant error of law.

 

Shafiqul Islam (Md) vs Md Imdadul Hoque and others 6 BLC 451.

 

Section 7(2) (g)

 

It appears from the Memo dated 2-1-03 issued by the respon-dent 7 informing the respondent 4 that the petitioner was a guarantor for the loan taken from Sonali Bank and on the basis of that Memo the respondent 4 rejected the nomination paper of the petitioner. The respondents neither produced before the appellate authority nor before the High Court Division the Memo dated 2-1-03 on the basis of which the respondent 4 rejected the nomination paper filed by the petitioner and the Memo dated 6.-1-03 which was jointly signed by respondents 6 and 7 and addressed to BRDB cannot be the basis of rejection of nomination paper because on 2-1-03 the date fixed for scrutiny of the nomination paper at that time even the aforesaid Memo was not issued.

 

Zamir Hossain Master (Md) vs Bangladesh and others 9 BLC 172.

 

Section 12

 

The petitioner having had attended the meeting there was no prejudice caused to him for insufficient time given in the notice convening special meeting. The resolution for removal of the petitioner from the office of Chairman on the basis of vote of no confidence held in a special meeting and approval of such proceeding by the government was rightly passed and approved in compliance with the requirements of section 12 of the Ordinance.

 

Belayet Hossain Bhuiyan vs Government of Bangladesh and others 6 BiC (AD) 60.

 

Section 20

 

In the instant case, merely because of inclusion of Mauza Haldermura  n ward No. 3 disturbing the territorial continuity it cannot be said that the impugned order of delimitation is violative of section 20 of the Ordinance in that it is absolutely within the provice of the Delimitation Officer to include a village in any ward taking into consideration all the 3 factors viz; territorial unity, administrative convenience and distribution of population as far as practicable. Moreso, it is the consistent view of the Appellate Division that section 20 of the Ordinance is not a mandatory one rather it is a directory in nature.

 

Abdul Wahab Chowdhury vs Md Abu Taker and others 6 BLC (AD) 151.

 

Section 20

 

In a democratic society it is the privilege of the villagers and voters that should be honoured in matters relating to delimitation or polling centre and not of any chairman, official or individual. Well-linked communication, territorial unity and distribution of population are pre­conditions in these matters which have been violated by the official with impunity.

 

Sirajul Islam (Md) vs Bangladesh and others 8 BLC 76.

 

Section 65

 

Petitioner was placed under suspension by the orders issued by the respondent No. 3 on the basis of judgment of conviction passed in the two criminal cases and as against that the appeals are still pending before the appellate Court for hearing and disposal and till then there is no reason necessitating the authority to place the petitioner under suspension.

 

Badiuzzaman (Md) vs LGRD and Co-operatives, and others 7 BLC 337.

 

Section 65(1)

 

Although the petitioner was involved in the criminal proceeding, he was subsequently released on bail but while he was in police custody the order of suspension was issued on 1-3-99 by the respondent No. 2 but before passing the order of suspension the respondent No. 3 appointed the respondent Np. 4 as acting Chairman of Sandhikona Union Parishad.

 

There are no materials to show that there was any murmur in the locality about the petitioner's involvement in the criminal case or that the members of the said Union Parishad raised any objection against the functioning of Chairman of the said Union Parishad. It further appears that no opinion was formed by the authority against the petitioner for his normal functions of the affairs of the Union Parishad and hence the impugned order of suspension has been declared to have been passed without any lawful authority and the appointment of the acting Chairman of the said Union Parishad has been cancelled.

 

Lutfar Rahman Bhuiyan Md (Santi) vs Secretary, Ministry of LGRD and Co-Operatives, Bangladesh Secretariat, and ors 7 BLC 739.

497

Martial Law Regulation No. 1986

Citation: 10 BLC 580

Case Year: 1986

Subject: Martial Law Regulation

Delivery Date: 2018-05-16

Martial Law Regulation No. 1986

VIII of 1986

 

Rule 5(1)

 

Since impugned letters had been issued after withdrawal of Martial Law and when Martial Law Regulation No VIII of 1986 was not in force and when suit was filed long after withdrawal of Martial Law and on legal funeral of Martial Law Regulation, there could not be any attraction of Sub-Rule 1 of Rule 5 of Martial Law Regulation No VIII of 1986 and there could not be any safeguard under 7th Amendment of Constitution.

 

Rajdhani Unnayan Kartripakhya (RAfUK) and others vs Md Lutfar Rahman andors 10 BLC 580.

 

Rule 6

 

Land acquired was to be used only for specified purposes noted in Rule 6 of Martial Law Regulation No VIII of 1986 and for no other purpose land could be used. Words "for development for .commercial and public recreational purposes" means development for purposes, both commercial and public. Commercial recreation is for a community of people and not for a particular person or persons. Letters of allotment in favour of allottees Md Omar Faruk and two others could not be said to be allotment for commercial and recreational public purposes but for personal benefits of allottees Md Omar Faruk and others.

 

RAJUK vs Md Lutfar Rahman 10 BLC 580.

498

Martial Law Regulation No. I of 1982

Citation: 6 BLC (AD) 80

Case Year: 1982

Subject: Martial Law Regulation

Delivery Date: 2018-05-16

Martial Law Regulation No. I of 1982

 

Regulation 18

 

It is clear that the Chief Martial Law Administrator interfered with the awarding of sentence and imposed 3 sentences namely, imprisonment, fine and confiscation which the High Court Division rightly found to be not authorised by law when the confiscation has been affirmed in the later part of the order of Chief Martial Law Administrator the High Court Division found that this should be held to be without lawful authority.

 

Bangladesh and another vs Feroz Mehedi 6 BLC (AD) 80.

499

Martial Law Regulation No. VII of 1977

Citation: 10 BLC (AD) 198

Case Year: 1977

Subject: Martial Law Regulation

Delivery Date: 2018-05-16

Martial Law Regulation No. VII of 1977

 

Articles 4 & 5

 

The suit lands do not subscribe to the said definition to be declared as abandoned and the present suits do not come within the mischief of MLR No. VII of 1977 or under the aforesaid provision of the Schedule of the Constitution and the concerned President's Order.

 

Sena Kalyan Sangstha vs Haji Sufi Fazal Ahmed 10 BLC (AD) 198.

500

Mines and Mineral Rules, 1968

Citation: 10 BLC 549

Case Year: 1968

Subject: Mines and Mineral

Delivery Date: 2018-05-16

Mines and Mineral Rules, 1968

 

Rule 27C

 

No show cause notice was issued to the petitioner in accordance with law prior to cancellation of the lease. Moreover, the lease was cancelled quoting section 27C of the Rules of 1968 which is totally unconnected with cancellation of the lease. Such action on the part of respondent No. 3 is strongly deprecated.

 

Concord Engineering vs Government of Bangladesh and others 10 BLC 549.

501

Mohammadan Law

Citation: 10 BLC 48, 9 BLC 267, 10 BLC (AD) 160, 7 BLC 186, 8 BLC 306

Subject: Mohammadan Law

Delivery Date: 2018-05-16

Mohammadan Law

 

Heba-bil-Ewaz

 

It appears that the plaintiff opposite partyfailed to prove that the registered Heba-bil-Ewaz deed in question was fraudulently obtained by the defendant opposite party. The deed in question is admitted by the plaintiff and such a duly executed, signed and registered deed always carries a presumption of genuineness.

 

Raoshanara Begum and anr vs Sokhina Khatun and ors 10 BLC 48.

 

Oral gift

 

A general statement has been made in the plaint and in support thereof a general statement has also been made in the deposition which has not been corroborated by other PWs as to the material particulars of quantum of land, how and when in order to constitute a gift in favour of Aptabuddin Sardar by Wazed AH and thus, the plaintiffs have not been able to prove the alleged oral gift of 0.57 acres of land in favour of Aptabuddin Sardar by Wazed Ali.

 

Shahed Ali Howlader and another vs Md Alauddin Sarder and others 9 BLC 267.

 

Valid gift

 

There is no doubt that under Mohamadan Law there must be an offer, acceptance and delivery of possession of the property sought to be gifted to constitute valid gift.

 

Monzur Rahman Khan vs Tahera Parvin and others 10 BLC (AD) 160.

 

Section 142

 

It is well settled that a Mohammedan may dispose of all his properties by way of gift in favour of anybody, even to a stranger but such gift in order to be valid and complete three conditions are required to be fulfilled, firstly, a declaration of gift by the donor in favour of the donee, secondly, an acceptance of the said gift expressly or impliedly by the donee and thirdly, delivery of possession of the subject-matter of the gift by the donor to the donee.

 

Minor Md Basihur Rahman Biswas vs Md Hanif Ali Biswas and others 7 BLC 186.

 

Sections 149 and 150

 

It is evident from the recital of Exhibit 2 that the essential ingredients of the gift or heba appears to be a complete one and it does not disclose any ingredients of lawful contract which can be placed to enforce through the Court of law. Defendant Nos. 1 to 7 cannot be also asked to convey the suit land as they cannot claim ownership to the property which had already been gifted by their predecessor. Registration is not necessary for a valid gift under the Mohammadan Law.

 

Sajida Begum and others vs Abdul Kader and others 8 BLC 306.

502

Motor Vehicles Ordinance, 1983

Citation: 10 BLC 373

Case Year: 1983

Subject: Motor Vehicles

Delivery Date: 2018-05-16

Motor Vehicles Ordinance, 1983

[LV of 1983]

 

Sections 140,152,156 & 161

 

On being asked by the petitioner as to why he was behaving in such a rude manner, the police officer, the respondent No. 10, without caring to reply asked for the documents of the car. Then the respondent No. 10 took all the documents of the government car and left the place. When the petitioner was about to leave the airport along with his son and wife, another policeman came up to the car and handed over a piece of paper to him which turned out to be Charge Report under section 105 of the Motor Vehicles Ordinance, 1983 issued by said respondent No. 10 alleging contravention of sections 140,152,156 with a special note that he has framed charge under the instruction of the OC, Cantonment Police Station and the Chief Security Officer of the Airport and also recommending realisation of full fine. In the instant case, respondent No. 10 had absolutely no basis to form opinion that the documents of the government car are false and in impounding such documents he was in gross violation of section 161 of the Motor Vehicle Ordinance, 1983 and such actions of the police officer was not only excess of his jurisdiction, but malafide too.

 

Brigadier (Retd) AHM Abdullah vs Government of Bangladesh and ors 10 BLC 373.

503

Muslim Family Laws Ordinance, 1961

Citation: 6 BLC 1

Case Year: 1961

Subject: Muslim Family Laws

Delivery Date: 2018-05-16

Muslim Family Laws Ordinance, 1961

[VIII of 1961]

 

Section 7

 

Dissolution of marriage by uttering the word 'talaq' once or twice at the same time is against the injunction of the Qur-an and the Hadith as well as invalid in law under section 7 of the Muslim Family Laws Ordinance and such type of talaq is rightly called as talaq-ul-biddat or heretical divorce and hence the marriage between Saiful and Sahida was not dissolved and that if it is taken for the sake of argument that the marriage was dissolved, even then there was no legal bar for Sahida to remarry Saiful without an intervening marriage with a third person and as such the fatwa in question is wrong.

 

Daily Banglabazar Patrika and two others vs District Magistrate 6 BLC 1.

504

Muslim Marriages and Divorces (Registration) Act, 1974

Citation: 6 BLC 483, 8 BLC 349, 9 BLC (AD) 248, 10 BLC (AD) 134

Case Year: 1974

Subject: Muslim Marriages and Divorces (Registration) Act, 1974

Delivery Date: 2018-05-16

Muslim Marriages and Divorces (Registration) Act, 1974

[LII of 1974]

 

Section 4

 

As there is no clear prohibition in the Act and the Rules framed thereunder that a man having defective or short eyesight cannot be appointed as a Nikah Registrar it cannot be said that the appointment of the respondent No. 6 as Nikah Registrar is illegal.

 

Kazi Mohammad Yunus vs District Registrar Chittagong and ors 6 BLC 483.

 

Section 4

 

Petitioner has challenged the second proviso to section 4 of the Muslim Marriages and Divorces (Registration) Act, 1974 and the Muslim Marriages and Divorces (Registration) Rules, 1975 particularly Rules 3/4 and 10 and the order dated 3-2-2000 appointing respondent No. 6 as Nikah registrar for three Unions of his Nikah Registration area and also to strike down the second proviso to section 4 of Act No. LII of 1974 and the Rules framed thereunder.

 

The existing Rules of 1975 is inept, in cohesive, inadequate, ambiguous and ineffective having tendency to pick and choose policy, arbitrariness, absurdities and require to be remodeled and redrafted in the given situation and demand of time with sound thought and modern look with reference to Articles 10, 28(2) 29(2) 27, 31 and 40 of the Constitution and the warrant of Procedure. Thus the Muslim Marriages and Divorces (Registration) Rule, 1975 is struck down being unconstitutional.

 

Ruhul Mannan Helali vs Bangladesh 8 BLC 349.

 

Section 4

 

The appointment of the appellant as Nikah Registrar was in respect of new area which had no reference to or connection with the area wherein the respondent 1 is acting as Nikah Registrar. The appellant has been appointed as Nikah Registrar of the area of the newly established Municipality. No area of the respondent 1 wherein he is acting as Nikah Registrar after the formation of the Gafargaon Municipality has been curtailed and consequently there was no requirement of law for serving notice upon respondent 1 prior to issuing the impugned Memo according approval for the appointment of the appellant as Nikah Registrar in respect of the 3 wards of Gafargaon Municipality.

 

Saiful Islam (Md) vs Md Abdur Rahim and other 9 BLC (AD) 248.

 

Section 4

 

The Government is empowered to extend, curtail or otherwise alter the area of jurisdiction of a Nikah Registry subject to the maximum area provided in the Rules.

 

Kazi Imarnuddin Bhuiya vs Government of Bangladesh and others 10 BLC (AD) 134.

505

Muslim Marriages and Divorces Registration Rules, 1975

Citation: 8 BLC 34, 10 BLC (AD) 134, 9 BLC (AD) 248

Case Year: 1975

Subject: Muslim Marriages and Divorces Registration

Delivery Date: 2018-05-20

Muslim Marriages and Divorces

Registration Rules, 1975

 

Rules 3, 4, 5, 6, 10, 18, 19 & 34

 

Petitioner has challenged the second proviso to section 4 of the Muslim Marriages and Divorces (Registration) Act, 1974 and the Muslim Marriages and Divorces (Registration) Rules, 1975 particularly Rules 3, 4 and 10 and the order dated 3-2-2000 appointing respondent No. 6 as Nikah registrar for three Unions of his Nikah Registration area and also to strike down the second proviso to section 4 of Act No. LII of 1974 and the Rules framed thereunder.

 

The existing Rules of 1975 is inept, in cohesive, inadequate, ambiguous and ineffective having tendency to pick and choose policy, arbitrariness, absurdities and require to be remodeled and redrafted in the given situation and demand of time with sound thought and modern look with reference to Articles 10, 28(2) 29(2) 27, 31 and 40 of the Constitution and the warrant of Procedure. Thus the Muslim Marriages and Divorces (Registration) Rule, 1975 is struck down being unconstitutional.

 

Ruhul Mannan Helali. vs Bangladesh 8 BLC 349.

 

Rules 4, 5 and 10

 

The Government is empowered to extend, curtail or otherwise alter the area of jurisdiction of a Nikah Registry subject to the maximum area provided in the Rules.

 

Kazi Imamuddin Bhuiya vs Government of Bangladesh and others 10 BLC (AD) 134.

 

Rule 10

 

On the establishment of the Gafargaon Municipality the area which was previously a part of No. 4 Saltia Union Parishad became the area of the Gafargaon Municipality. The appointment of the appellant as Nikah Registrar was in respect of new area which had no reference to or connection with the area wherein the respondent 1 is acting as Nikah Registrar. The appellant has been appointed as Nikah Registrar of the area of the newly established Municipality. No area of the respondent 1 wherein he is acting as Nikah Registrar after the formation of the Gafargaon Municipality has been curtailed.

 

Saiful Islam (Md) vs Md Abdur Rahim and other 9 BLC (AD) 248.

506

Narcotics Control Act, 1990

 

NarcoticsControl Act [XX of 1990]


Section 2(kha), 10(ga) & 3(kha) of the Second Schedule–

Thecontention that unless the aforesaid provisions of laws are made to coexist bygiving harmonious interpretation or the said offending provisions of theNarcotics Control Act are removed by amendment, members of the petitionerassociation as manufacturers of homeopathic medicine and drugs will beseriously affected is not real or justified.

BangladeshHomeopathic Medicine Manufacturers Associa­tion vs Bangladesh and others 55 DLR590.

 

Section 19(1) & Serial (T) or (U)–of the Table–

In theabsence of any law declaring Phensidyl contraband, presence of Chlorpheniraminemaleate and/or codeine phosphate in Phensidyl will not make it contraband as aschedule narcotic– Therefore, carrying or possession of the Phensidyl seized isnot a punishable offence.

Badal KumarPaul vs State 55 DLR 218.

 
507

Non-Agricultural Tenancy Act, 1949

Citation: 22 BLD (HCD) 211, 22 BLD (AD) 128, 17 BLD(HCD) 152, 19 BLD (HCD) 359, 22 BLD (HCD) 211

Subject: Non-Agricultural Tenancy

Delivery Date: 1970-01-01

 

 

 

Non-Agricultural Tenancy Act, 1949

 

Section—7

The tenancy in question having been created prior to and continued when the Act came into force on 20.10. 1949, and such tenancy transmitted by inheritance, the plaintiffs acquired an interest to continue such possession as of right which is protected from eviction.

Ramzan Mia and others v. Ida Mia and others, 22 BLD (HCD) 211.

 

Section—24

Pre-emptors are required to establish a definite and distinct case, and not a ‘prima facie’ case of being co-sharers of the land sought to be pre-empted.

Hiran Chandra Dey v. Md. Abdul Qu. yum and others, 22 BLD (AD) 128.

 

Sections—24 and 85(2)

“Tenant’ ordinarily means an occupier of immovable property paying rent to a person who is generally called “landlord.” There are two categories of tenants : one, who has full ownership in the land with. the right to transfer and inherit and the other who has no such right. Non-Agricultural Tenancy Act was enacted for the first category of tenants and not for the second category. Section 85(2) of the Act speaks about the second category of tenants.

Since the lease-hold right in the land within the Dhanmondi Residential Area is transferable and heritable and yearly rent is payable to the Government, its owner is a non-agricultural tenant and not a “tenant” as mentioned in section 85(2) of the Act. An application under section 24 of the Nonagricultural Tenancy Act in respect of any land situated within Dhanmondi Residential Area is maintainable in law.

 

Dr. Ismat Mirza and others Vs Md. Mosaddique Hossain and others, 17 BLD(HCD) 152.

Ref: 33 DLR 10; 17 DLR 384; (1964) 1 Q.B. 395—Cited.

 

Section—24(3)

Improvement costs

Section 24(3) of the Non-Agricultural Tenancy Act, 1949, appears to be a primafacie bar against the pre-emptee’ s claim for improvement cost for any improvement made after receiving notice of the pre-emption case. He can succeed in his claim only\ when he satisfactorily proves that he made the alleged improvement bonafide for the beneficial development of the case property.

Md. Belayet Hossain Vs. Shah Alam Parvez and others, 19 BLD (HCD) 359.

 

Section—26

The payment of rent to the government in respect of the suit land shows that the plaintiffs have been recognised as tenants under the government.

Ramzan Mia and others v. Idu Mia and others, 22 BLD (HCD) 211.

 

508

Original Side Rules

Subject: Original Side Rules

Delivery Date: 2018-05-20

Original Side Rules

 

Chapter XVI rule 27

 

The plaintiff filed an application for permission to put in the requisite after condoning the delay for drawing up the decree in pursuance of the judgment and order passed in the Admiralty suit. On a perusal of the application and on consideration of the submission it brooks no controversy that the said application is founded on Rule 27 of the Original Side Rules as contained in Chapter XVI. But the Original Side Rules are no more alive. The Original Side Rules of the Calcutta High Court was framed under clause 37 of the Letters Patent, 1985 with the introduction of the Law Reforms Ordinance, 1978 the Letters Patent has been repealed by section 3 of the said Ordinance. On a scrutiny of the Law Reforms Ordinance, 1978, it is found that the Original Side Rules framed by the Calcutta High Court under Clause 37 of Letters Patent, 1865 have not been preserved by

509

Palli Bidyut Samity Service Code, 1992

Citation: 10 BLC 667

Case Year: 1992

Subject: Palli Bidyut Samity Service Code, 1992

Delivery Date: 2018-05-20

Palli Bidyut Samity Service Code, 1992

 

Sections 38(1)(Kha)(3) and 39(2) Absence of giving second show cause notice —Effect of—

 

The entire proceedings of inquiry and investigation as initiated against the petitioner has in the result been vitiated for want of supply of a copy of the inquiry report along with the second show cause notice dated 19-6-1997. The High Court Division holds further that the petitioner being seriously prejudiced by such inquiry report not being furnished her, the punishment meted out in the form of removal from service and order for refund of Taka 6, 14, 084.20 cannot be deemed to have been passed legally in the facts and circumstances of the case and therefore, the impugned orders are hereby declared to have been passed without any legal authority and to be of no legal effect.

 

Nazma Akhtar vs GM, Rural Electrification Board and others 10 BLC 667.

510

Paris Convention

Citation: 7 BLT (HCD)-70, 15 BLT (HCD) 258.

Subject: Paris Convention

Delivery Date: 1970-01-01

 

Paris Convention

 

Article-6

We have already found that the mark of the objector-respondent was not in well known use in this country. For attracting Article 6 of the Paris Convention there must be proof of well-known or wide use which is very much lacking in the case of the objector. Furthermore, the objector has not got his mark registered in this country. So he now cannot claim any protection under Article 6 of the Convention. Our law has not given him any right to pray for such protection.

Samah Razor Blades Industries Ltd. Vs. M/S. Supermax International Pvt. Ltd. 7 BLT (HCD)-70

 

Article-6

Whether Press release by world Trade Organization has affected any provisions of Paris convention

Article 6 of the Paris Convention could be made applicable in the matter of protection of Industrial property on two prime considerations. One is that the party claiming protection under article 6 of the Paris Convention must prove that they have used the mark in the country where the protection is sought and the other is that they have got registration in the country of origin prior to the registration obtained by a party in a country of the union where the application for removal or rectification has been filed. In the instant case having examined the materials on record it is evident that the respondent No.2 got the registration in India in the year 1985 which is much prior to the date of registration of the same mark in the name of the appellant. And about the user there are sufficient materials on record —In that regard our opinion is that this kind of Press release by World Trade Organization has not affected any provisions of Paris Convention of which 100 countries of the World are signatories by becoming members.

Md. Mofidul Haque Vs. Govt. of Bangladesh & Ors 15 BLT (HCD) 258.

 

511

Partition Act, 1893

Citation: 7 BLC 90

Case Year: 1893

Subject: Partition

Delivery Date: 2018-05-20

Partition Act, 1893

[IV of 1893]

 

Section 4

 

The petition under section 4 of the Partition Act could not be entertained because the whole purpose and object of the suit was to have the property purchased from defendant No. 1 under the garb of law of partition since the plaintiffs failed to pre-empt the suit property which is otherwise completely separated from the other part of the property and hence the learned Subordinate Judge was justified in dismissing the suit and rejecting the application under section 4 of the Partition Act.

 

Dr.  Ismat Mirza and other vs Md Mosaddek Hossain and ors 7 BLC 90.

512

Paurashava Ordinance, 1977

Citation: 8 BLC 490, 6 BLC 644, 8 BLC 674, 6 BLC 47, 8 BLC 168

Case Year: 1977

Subject: Paurashava

Delivery Date: 2018-05-20

Paurashava Ordinance, 1977

[XXVI of 1977]

 

Sections 3 and 4

 

The allegations on which the writ petitions were brought could not be substantiated by producing undisputed documents. Moreover, these are all disputed questions of fact which cannot be resolved in writ jurisdiction. Furthermore, since the Government by filing affidavit-in-opposition and by producing relevant Government files have been able to show that all the legal formalities required for the purpose were duly complied with and as such there is no merit in the writ petitions.

 

Nizamuddin and others vs Ministry ofLGRD and Co-operatives Secretary and others 8 BLC 490.

 

Sections 3 and ISA—W

 

hen the petitioner himself wanted to be the Administrator of the newly declared Paurashava, the objection of the petitioner against such alteration has got no legal basis and when the inhabitants of the concerned urban area did not raise any objection in response to the notice published under rule 3 of the Rules of 1978, inviting suggestions and/or objections, in respect of the proposal for declaring the said urban area as a municipality, it is apparent that the requirements of law as spelt out in the Ordinance as well as in the rules have been fully complied with and the Government rightly declared the urban area of Teknaf Sadar Thana as Teknaf Pourashava. The Government did not record the reasons for invoking section 18A of the Pourashava Ordinance in appointing the respondent No. 4 as Administrator of Teknaf Pourashava. Mere stereotyped statement that the order was passed in the interest of the public has got no value. The Government have ignored the provisions of Articles 9, 11 and 59 studded in the Constitution and hence the order appointing the respondent No. 4 as the Administrator of Teknaf Pourashava is declared as illegal, void and without any lawful authority.

 

Ejahar Miah alias Ezhand Haque vs Government of Bangladesh and ors 6 BLC 644.

 

Sections 4, 20, 21 and 138

 

The Delimitation Officer for Gazipur Pourashava after publishing the Preliminary List of Wards forwarded the objections to the Government and the Government by order dated 19-5-98 gave the decision to exclude cantonment area and thereafter the Delimitation Officer made amendments, alterations or modifications of the Preliminary List of Wards as required by the decision of the. prescribed authority on 9-6-98 and 22-6-98 and notified the same. The Delimitation Officer acted in accordance with the decision given by the prescribed authority on 19-5-98.

 

The proper course for the Gazipur Pourashava was to refer the matter to the Government in accordance with section 138 of the Pourashava Ordinance, 1977 if still there remained any dispute after publication of the final list of delimitation of wards on 22-6-98 in Annexure-B(l) to the writ petition.

 

AKM Mozammel Hucj vs ADC (General), Gazipur and Delimitation Officer, Gazipur Pourashava, Gazipur _and others 8 BLC 674.

 

Section 152

 

The emphasis given on the service of notice enjoined by section 152 of the Pourashava Ordinance as a condition precedent for institution of a suit clearly shows the intention of the legislation and such provision is mandatory and not directory and non-service of such notice is a complete bar against the suit and hence the plaint is rejected.

 

Nurul Islam (Md), Chairman and others vs Sheikh Enterprise 6 BLC 47.

 

Section 152

 

Notice as required under section 152 of the Pourashava Ordinance having not been served by the plaintiff before filing of the suit it is barred under section 152 of the Pourashava Ordinance. When the suit was instituted at that time the Pourashava was in existence. On a perusal of the plaint it appears that the plaintiff has not acquired any legal character to institute the suit. Plaintiff was not even selected for the post of Vaccinator rather, she was selected only in the written examination. Hence, the plaint is rejected.

 

Zakia Sultana vsMaksuda Parvin and others 8 BLC 168.

 

513

Police Act, 1861

Citation: 10 BLC 373

Case Year: 1861

Subject: Police Act

Delivery Date: 2018-05-20

Police Act, 1861

[V of 1861]

 

Section 23

 

In the instant case, respondent No. 10 had absolutely no basis to form opinion that the documents of the government car are false and in impounding such documents he was in gross violation of section 161 of the Motor Vehicles Ordinance, 1983 and such actions of the police officer was not only excess of his jurisdiction, but malafide too. Under the Police Act/1861, a duty was cast upon the police by section 23 to "prevent commission of offences and public nuisance". The Police Regulation of 1943 imposed further control on the police by requiring them to "abstain from causing unnecessary harassment either to parties or to the people generally. Regulation 33 (a) required all ranks to "show forbearance, civility and courtesy towards all classes." As an additional measure, rudeness, harshness and brutality were forbidden by Regulation 33(b). More recently, in 1976, under the Ordinance, the police was required "to act with strict regard to decency and reasonable gentleness" in dealing with women and children. The Police, as the law enforcing agency of the State, are to ensure that the law of the land is obeyed and followed by the general public. It is, therefore, not only a matter of utmost regret, but also of grave concern, when such acts of violation are committed by the police themselves. It is also a sad reality that although police excesses occur regularly, such incidents are rarely challenged in a court of law. The facts stated in the writ petition, being uncontroverted, are, therefore, deemed to be correct in the eye of the law. Quite clearly, the conduct of respondent No. 10 not only falls within the ambit of the term 'misconduct', it is also violative of the other provisions of the law. As such, the High Court Division has no hesitation in holding that the allegation of misconduct against respondent No. 10 has been established.

 

Brigadier (Retd) AHM Abdullah vs Government of Bangladesh 10 BLC 373.

514

Police Officers (Special Provisions) Ordinance, 1976

Citation: 22 BLD (AD) 237

Subject: Police Officers (Special Provisions)

Delivery Date: 1970-01-01

 

 

Police Officers (Special Provisions) Ordinance, 1976

 

Section—3

Police Regulation of Bengal (PRB), Regulatlon—858(a)(1)

There are two parts of section 3 of the Ordinance. The second part indicates that the overriding provision in the first part of section 3 does not exclude the operation of the law, rules and regulations including PRB in force prior to the promulgation of the Ordinance. It is for the authority to decide whether a delinquent police personnel would be proceeded under the Ordinance or pre-existing law/rules. As pre-existing law remained valid, disciplinary proceedings under Regulation No. 858 of the PRB has been legally initiated. Moreover, Regulation 858 (a)(2) empowers the Superintendent of Police to award a police personnel, i.e. Sub-inspector of Police, any punishment, i.e. dismissal, removal, which may be awarded by the Inspector General or Deputy Inspector General of Police under Regulation No. 858(a)(1). Thus AT was in error in holding that Superintendent of Police can only award punishment to Sub-Inspector of Police under Regulation 858(a)(1)(iv), i.e. censure or reprimand.

Government of Bangladesh and others V. Md.Sharifuddin Mollah, 22 BLD (AD) 237.

 

515

Police Regulations of Bengal, 1943

Citation: 10 BLC 373

Case Year: 1943

Subject: Police Regulations of Bengal

Delivery Date: 2018-05-20

Police Regulations of Bengal, 1943

 

Regulations 33 and 260In the instant case, respondent No. 10 had absolutely no basis to form opinion that the documents of the government car are false and in impounding such documents he was in gross violation of section 161 of the Motor Vehicle Ordinance, 1983 and such actions of the police officer was not only in excess of his jurisdiction, but malafide too. Under the Police Act, 1861, a duty was cast upon the police by section 23 to "prevent commission of offences and public nuisance". The Police Regulation of 1943 imposed further control on the police by requiring them to "abstain from causing unnecessary harassment either to parties or to the people generally. Regulation 33(a) required all ranks to "show forbearance, civility and courtesy towards all classes." As an additional measure, rudeness, harshness and brutality were forbidden by Regulation 33(b). More recently, in 1976, under the Ordinance, the police was required "to act with strict regard to decency and reasonable gentleness" in dealing with women and children.

 

The Police, as the law enforcing agency of the State, are to ensure that the law of the land is obeyed and followed by the general public. It is, therefore, not only a matter of utmost regret, but also of grave concern, when such acts of violation are committed by the police themselves. It is also a sad reality that although police excesses occur regularly, such incidents are rarely challenged in a court of law. The facts stated in the writ petition, being uncontroverted, are, therefore, deemed to be correct in the eye of the law. Quite clearly, the conduct of respondent No. 10 not only falls within the ambit of the term 'misconduct', it is also violative of the other provisions quoted above. As such, the High Court Division has no hesitation in holding that the allegation of misconduct against respondent No. 10 has been established.

 

Brigadier (Reid) AHM Abdullah vs Government of Bangladesh 10 BLC 373.

516

Power Development Board (Employees) Service Rules, 1932

Citation: 7 BLC (AD) 122

Case Year: 1932

Subject: Power Development Board (Employees) Service

Delivery Date: 2018-05-20

Power Development Board (Employees)

Service Rules, 1932

 

Rule 143

 

In view of rule 143(1)(2) of the Power Development Board (Emplo­yees) Service Rules, 1982, the High Court Division erred in law in holding that the respondent is entitled to get another show cause notice by the authority to submit written defence to them as per sub-rule (2) of rule 143 and that not having been given there was gross violation of the said rule.) But in the facts and circumstances of the case the factual aspect of the case having been found in favour of the respondent as elaborately discussed by the High Court Division holding that factually there is no justification for imposing any penalty on the respondent, in order to secure the interest of justice and do complete justice the impugned judgment warrants no interference.

 

Chairman, Power Development Board vs Md Fazlul Hague 7 BLC (AD) 122.

 

517

Power of Attorney Act, 1882

Citation: 7 BLC (AD) 101

Case Year: 1882

Subject: Power of Attorney

Delivery Date: 2018-05-20

Power of Attorney Act, 1882

[VII of 1882]

 

Sections 2 and 4

 

The Courts below believed the plaintiff's case of fraudulent insertion of clause as to transfer in the power of attorney and decreed the suit. The authority of the defendant No. 1 to sell the property to his wife defendant No. 2 was not in the power of attorney and accordingly, the trial Court observed that no permission has ever been taken from proforma defendant No. 3 for transfer of the shop premises allotted to the plaintiff and, as such, the power of attorney was not executed in accordance with law.

 

AKM Amjad Hossain & another vs Md Nasir 7 BLC (AD) 101.

518

Practice and Procedure

Citation: 10 BLC 220

Subject: Practice and Procedure

Delivery Date: 2018-05-20

Practice and Procedure

 

It is the custom/practice in the lower Court that whenever a copy of any application is served upon the learned Advocate he receives the same on endorsing "Received with objection" or "with serious objection" if the same appears to be objected to. But in the present case the copy of the application has been received simply by endorsing "seen" for which the Court below did not commit any illegality in taking up the application for hearing which was received by the plaintiffs Advocate without any objection and without seeking any adjournment or time when the application was taken up for hearing and hence the Court did not commit any illegality in passing the impugned order.

 

Syed Ahmed Gazi vsBhakti, Bhusan Mahajan 10 BLC 220.

519

Pre-shipment Inspection Order, 1999

Citation: 6 BLC 357

Case Year: 1999

Subject: Pre-shipment Inspection Order, 1999

Delivery Date: 2018-05-20

Pre-shipment Inspection Order, 1999

 

Articles 5 (l) (ka) 7, 8 and 9

 

The importers of goods as petitioners filed the respective writ petition challenging the impugned inflated and fictitious GIF price and CRF Certificate endorsed by PSI Agency violating the Customs Act, Pre-shipment Inspection Order, 1999 and GATT Valuation Agreement and sought relief by way of judicial review of the High Court Division. The respondents having not acted in accordance with law and PSI order and acted in excess of the PSI Agency's power conferred under section 25A of the Customs Act and PSI Order, 1999 and hence these rules are made absolute directing the department to determine the normal value of the goods imported by the respective petitioner in accordance with law ignoring the arbitrary and fictitious CIF value certified by the PSI Agency.

 

Showkat Ali and 15 others vs Commissioner of Customs 6 BLC 357.

 

 

 

520

Pre-shipment Inspection Rules, 1996

Citation: 6 BLC 379

Case Year: 1996

Subject: Pre-shipment Inspection

Delivery Date: 2018-05-20

Pre-shipment Inspection Rules, 1996

 

Rule 2

 

Admittedly, the petitioner opened the letter of credit on 30-6-97 for import of consignment in question and under section 25A of the Customs Act obtained a pre-shipment inspection certificate and upon arrival of the goods the petitioner submitted the bill of entry for release of the consignment on payment of Customs duty, VAT and other charges on the basis of CRF but the Customs authority sent the same before the review committee which having found the CRF price being lower than the previous price has cancelled the same by the impugned order. If the CRF could be cancelled as the previous price is higher in that event the provisions of section 25A and Rules framed thereunder would be frustrated. Unless any infirmity required for cancellation of the CRF is available, merely that the CRF is lower than the previous price, could not be a cause for cancellation of CRF. In the instant case, in the absence of any other material contemplated in section 25A of the Customs Act and Rules made thereunder for the purpose of cancellation of CRF the impugned order has been passed without lawful authority.

 

Moonshine Traders vs Commissioner of Customs 6 BLC 379.

521

Premises Rent Control Act, 1991

Citation: 9 BLC 644, 10 BLC (AD) 6, 6 BLC 77

Case Year: 1991

Subject: Premises Rent Control

Delivery Date: 2018-05-20

Premises Rent Control Act, 1991

[III of 1991]

 

Section 18

 

Defendant No. 1 admittedly stopped paying rent since October, 1998. Since then he did not take any step to pay rent. So, the defendant became a defaulter and ultimately he was evicted through process of the Court on 16-8-2003. The arrears of rent piled up to Taka 13,16, 360 from 1-10-1998 to 31-8-1999 before he was evicted. The decree so passed cannot be said to be invalid, the notice for eviction dated 12-7-1998 and subsequent correspondence between the parties were sufficient in establishing the intention of the parties to vacate the suit premises. After the expiry of the period of the tenure on 30-5-1997 the lease was determined.

 

Weaver Bind Sweater International (Private) Ltd vs Md Abul Hashem Mia and ors 9 BLC 644.

 

Section 18(4)

 

The judgment-debtor laid an application under section 46 of the Code of Civil Procedure to direct the decree-holder to complete construction of the proposed market within six months and also to pass necessary direction under section 18(4) of the Premises Rent Control Act, 1991 to the decree-holder to let out a specific shop room to the judgment-debtor as per approved plan in view of the observation made by the Appellate Division. Undisputedly, the judgment-debtor is still occupying the possession of the premises as a result of which the plaintiff did not get vacant possession of the premises and, as such, the question of construction of the building within a specified period or to undertake to let out a shop room to the judgment-debtor does not arise.

 

Mukti Pada Shil vs Golam Mohammad 10 BLC (AD) 6.

 

Sections 21 and 30

 

In a pending House Rent case the petitioner filed an application under section 151 of the Code of Civil Procedure for getting water connection which was rejected by the House Rent Controller such order being an interlocutory order is not an appealable one. As the Premises Rent Control Act is a Special Act the provisions of the Code of Civil Procedure is not applicable. House Rent Controller is not a full-fledged civil Court and not invested with all the powers available under the Code of Civil Procedure and it cannot grant temporary injunction.

 

Nurul Alam and another vs Dr Shahjahan Howlader (Md) and another 6 BLC 77.

522

Premises Rent Control Ordinance, 1963

Citation: 22 BLD (HCD) 591, 14 BLD (HCD) 294, I4BLD(HCD)360, 15 BLD (AD)9, 14 BLD (HCD) 528

Subject: Premises Rent Control

Delivery Date: 1970-01-01

 

 

 

Premises Rent Control Ordinance, 1963

 

Sections—18 and 19

Regular payment of rent and claim of adjustment against advance

A tenant is under a legal obligation to pay rent regularly to the landlord, which alone saves him from the menace of ejectment. A tenant has no right to claim adjustment of any advance against monthly rent. Advance rent or any premium in any form being strictly prohibited by law, any agreement for advance or premium is evidently void and not enforceable. The remedy for the tenant in case of advance is to move the Rent Controller within six months of creation of the tenancy for getting an order of refund.

Mymensingh Arya Dharma Gnan Prodaini Sava v. Sree Rabindra Narayan Paul, 22 BLD (HCD) 591.

Ref: Shamsuddin Ahmed v. Moh. Hossain, 31 DLR(AD)155—relied.

 

 

Sections—18(5) and 19(1)

Under Sub-section (1) of Section 19, a tenant is entitled to deposit his rent with the Rent Controller when the landlord has refused to accept the same after it was remitted to him within the specified period by postal money order in terms of Section 18 of the Ordinance. There is nothing in the ‘explanation’ to justify the view that there should be a prior personal tender of the rent to the landlord before remitting it by postal money order.

If Section 19(1) be read along with Section 18(5) of the Ordinance, it will be evident that in order to make a deposit under Subsection (1) of Section 19, the tenant is only to show that he remitted the Rent by Postal Money Order within the specified time and the landlord refused to accept it and the tenant’s prayer for deposit with the Rent Controller was made within a fortnight of the receipt of the undelivered rent sent through the postal authorities the landlord has refused to accept the within the specified period by postal of the Ordinance. There is nothing in that there should be a prior personal before remitting it by postal money.

The underlying object of this provision is to enable the tenants to fall back on the evidence of tender as preserved by the Rent Controller’s office for the purpose of subsequent determination of the question as to whether a tenant is a defaulter or not, should the landlord subsequently sue him for ejectment on the ground of default. This is for the protection of tenants and as such any ‘doubt’ regarding the meaning of the aforesaid provisions should be resolved in favour of the tenants for whose benefit it is intended.

M/S. Golden Biscuit Co.Vs. Al-Haj Rafique Mia and another, 14 BLD (HCD) 294

Ref: Maria Keshi D’ Rozario Vs. Hassan Movies Ltd., 41 DLR(AD) 135- Cited.

 

Sections—18(5) and 19(1)

If Section 19(1) be read along with Section 18(5) it becomes evident that a tenant is - ordinarily to pay rent within the time stipulated in the contract and in its absence by 15th day of the month next following for which rent becomes due. If the landlord refuses to accept rent sent through money order within the aforesaid period, the tenant becomes entitled under Section 19(1) (a) to deposit rent with the Rent Controller within a fortnight of the receipt of the undelivered rent. If the landlord fails to notify in writing his willingness to accept rent from the tenant, Clause (b) of Section 19(1) enables the tenant to deposit rent with the Rent Controller within 15 days from the stipulated date and in the absence of only such stipulation within 15 days from the 15th day of the month next following for which rent becomes payable.

Atiqullah Vs. Mosammat Rahela Bib I4BLD(HCD)360

 

Sections—18(S) and 19 (2)

When a bonafide doubt or dispute arises as to who is entitled to receive the rent as per section 18 of the Ordinance, the rent may be deposited by the tenant within a fortnight of the date on which the rent becomes due or from the expiry of the time within which such rent is required to be paid under sub-section (5) of Section 18. The question of bonafide doubt or dispute as to who is entitled to receive rent pre-supposes a dispute as to the ownership of the premises. Unfounded plea of bonafide dispute will not entitle the tenant to invoke the provision of sub-section (2) of Section 19 of the Ordinance.

If after receipt of the notice of attornment from the plaintiff the defendant does not offer rent to the plaintiff and the latter does not refuse it, the deposit of rent in the House Rent Controller Case by impleading the transferee landlord will not save the tenant from default and ejectment.

Abul Hossain Vs. Md. Islam, 15 BLD (AD)9.

Ref: 4 BLD(AD) 280—Cited.

 

Sections—10(b) and 18(5)

Contract Act, 1872 (IX of 1872), Section—23

Section 10(b) of the Ordinance prohibits the acceptance of money by way of advance rent by the land lord. This contravenes the positive statutory mandate as provided in section 10(b) of the Ordinance and renders the agreement for lease void under section 23 of the Contract Act. In view of the unenforceability of such an agreement the position is that the appellants are monthly tenants who are liable to ejectment if they make default in payment of rent. Even if the tenants become defaulters during the continuance of the suit, then they should be treated as a defaulters and they will not entitled to the benefit under section 18 (5) of the Ordinance.

Md. Jashimuddin and another Vs. Mrs. Nurjahan Begum, 14 BLD (HCD) 528.

Ref: Shamsuddin Ahmed Vs. Mohammad Hossain, 31 DLR (AD) 155; Ramjan Ali Mistry Vs. Md. Heday4Stullah; 31 DLR (AD) 183; Nowab Meah Vs. Nur Nahar Begum, B.S. CR (1983) 238- Cited.

 

523

Privatisation Act, 2000

Citation: 9 BLC 486

Case Year: 2000

Subject: Privatisation Act, 2000

Delivery Date: 2018-05-20

Privatisation Act, 2000

[XXV of 2000]

 

Section 11(1)(2)

 

Upon a reading of section 11 of the Privatisation Act, 2000 read with the provisions of Chapter 7 Of the Nitimala, it appears that the tender process begun on 8-2-2003 for a divestiture and disposal of the government shareholding, that is, for the sale of 62.50% government-owned shares in the respondent No. 4 company being undertaken in keeping with the said provisions and culminating in the issuance of the Letter of Intent cannot be said to have been vitiated by any illegality.

 

Amin Khan (Md) vs Privatisation Commission and others 9 BLC 486.

524

Privatisation Rules, 2001

Citation: 9 BLC 486

Case Year: 2001

Subject: Privatisation

Delivery Date: 2018-05-20

Privatisation Rules, 2001

 

Chapter 7

 

Upon a reading of section 11 of the Privatisation Act, 2000 read with the provisions of Chapter 7 of the Nitimala, it appears that the tender process begun on 8-2-2003 for a divestiture and disposal of the government shareholding/ that is, for the sale of 62.50% government-owned shares in the respondent No. 4 company being undertaken in keeping with the said provisions and culminating in the issuance of the Letter of Intent cannot be said to have been vitiated by any illegality.

 

Amin Khan (Md) vs Privatisation Commission and others 9 BLC 486.

525

Public Corporation (Management Co-ordination) (Amendment) Act 1994

Citation: 7 BLC 28

Case Year: 1994

Subject: Public Corporation (Management Co-ordination) (Amendment)

Delivery Date: 2018-05-20

Public Corporation

(Management Co-ordination) (Amendment) Act 1994

 [xvn of 1994]

 

Section 14A

 

Learned Advocate for the petitioner frankly concedes that the age limit for retirement of a worker has been prescribed under Act 17 of 1994. Section 14A of the Public Corporation (Manage­ment Co-ordination) (Amendment) Act (17 of 1994) has prescribed age limit for retirement of worker of enterprise on completion of 60 years of age. Accordingly, respondent Nos. 2 and 3 were directed to pay the retirement benefits to the petitioner at the present, taking the date of birth of the petitioner as on 16-9-34. Petitioner shall have the liberty to claim the retirement benefits on the basis of his date of birth as on 16-3-41 if he can prove such date of birth by any competent forum or authority in accordance with law.

 

Mrinal Kanti Roy vs Secretary, Cabinet Division, Government of Bangladesh and others 7 BLC 28.

526

Public Safety (Special Provision) Act, 2000

Citation: 8 BLC 601,

Case Year: 2000

Subject: Public Safety (Special Provision) Act, 2000

Delivery Date: 2018-05-20

Public Safety (Special Provision) Act, 2000

 [VII of 2000]

 

Section 3Per Mr Shamsul Huda J (dissenting):

 

Section 3 of the Public Safety Act says that notwithstanding anything contained in any other law, this Act shall prevail. This clearly means that whatever might have been provided in the Penal Code and the Criminal Procedure Code, the impugned Act has to be applied if any conduct of any person comes within its mischief, if the executive tried to apply the general law in such a case it will be a violation of the impugned Act and will be illegal. For the abuse of the law or over exercise of power by law enforcing agencies the law cannot be declared void.

 

Afzalul Abedin and others vs Bangladesh & ors 8 BLC 601.

 

Sections 4, 5, 6, 7, 8, 9,10,11 & 12Per Mr MA Aziz]:

 

 In these Rules there are less than one score or so cases where for one and the same offence first information reports were lodged inserting sections of both Penal Code as well as of the PSA and once PSA is mentioned the accused, even if there is no allegation attracting any of the sections of the PSA, is denied the right to even apply for bail within 90 days. The discretion to insert the section lies with the Police and there is no way to distinguish in PSA terms between one application of unlimited Police discretion and another. And it is unconstitutional not because a policeman applied his discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the Act represents an exercise of unlimited discretion, then the Act is invalid in all its applications. The PSA is unconstitutional because it does not provide sufficient minimal standards to guide the police.

 

Afzalul Abedin and others vs Government of Bangladesh & ors 8 BLC 601.

527

Public Servants (Dismissal on Conviction) Ordinance, 1985

Citation: 9 BLC (AD) 227, 6 BLC 447

Case Year: 1985

Subject: Public Servants (Dismissal on Conviction)

Delivery Date: 2018-05-20

Public Servants (Dismissal on Conviction) Ordinance, 1985

[V of 1985]

 

Section 3

 

The petitioner, having been acquitted of the charge made against him, is entitled to be reinstated to his original post held at the time of suspension /dismissal under section 3 of the Public Servants (Dismissal on Conviction) Ordinance, 1985. The inordinate delay in considering his appeal was good enough reason for the petitioner to be aggrieved and to file the writ petition. If an order in passed without jurisdiction then that is coram-non-judice and the aggrieved person may come for relief under the writ jurisdiction although there is an alternative forum available for redress as has been rightly found by the High Court Division.

 

Chairman and another vs Sakhawat Hossain 9 BLC (AD) 227.

 

Section 3(1)(3)

 

It appears that after receiving the order of conviction of the Metropolitan Magistrate the petitioner was dismissed from his service with effect from 9-6-90 in terms of section 3(1) of the Ordinance No. V of 1985. It further appears that the learned Additional Sessions Judge by his judgment and order dated 17-6-96 allowed the appeal by setting aside the aforesaid order of conviction dated 9-6-90 and acquitted the petitioner. The provisions of section 3(3) of the Ordinance No. V of 1985 will be applicable in this case and the petitioner is liable to be re-instated in his former service because of the aforesaid order of acquittal.

 

 Kazi Nasiruddin vs Bangladesh 6 BLC 447.

528

PUBLIC SERVANT’S (RETIREMENT) ACT, 1974

Citation: 1BLD (AD) 140, 1BLD (HCD) 420, 1BLD (HCD)399, 2BLD (HCD) 98, 3 BLD(AD)143

Case Year: 1974

Subject: PUBLIC SERVANT’S (RETIREMENT)

Delivery Date: 1970-01-01

 

 

PUBLIC SERVANT’S (RETIREMENT) ACT, 1974 (XII OF 1974)

 

Government power to retire a Government servant—The power of the Government to retire a Government servant before the age of superannuating is only on the ground of ‘public interest’—That is to say there must be a case that the Government servant concerned suffers from inefficiency or incompetence.

Government servant substantively appointed has the right to hold the post till the age of superannuation—This right is subject to law conforming to constitutional provisions.

Section 9(2) of Act XII of 1974 permitting an impugned notification prematurely retiring appellant without affording opportunity of showing cause is violative of Article 135 of the Constitution.

A Government servant is retired with full pension after 25years service not as a measure of punishment—It does not bear any stigma, nor any imputation is made or allegation is brought against the Government servant when thus retired with pension—The Indian Supreme Court has consistently held that premature retirement is not a punishment and it does not amount to removal—This is no reason to take a different view in this case.

Dr. Narul islam Vs. Bangladesh and others, 1BLD (AD) 140

Ref. A.I.R. 1958 (SC)36; A.I.R. 1964 (SC) 600; A.I.R. 1954(SC)369; A.I.R. 1975 (SC) 1487; A.I.R. l965(SC)280; A.I.R. 1965 (SC)l 967.

 

Violation of equality clause of the Constitution—Section 9(2) of Act XII of 1974 conferring unfettered discretion on the Government in the matter of compulsory retirement without any guideline either in the Act or in the Rules framed there under is violative of equality clause of the Constitution—Constitution of Bangladesh, 1972, Articles 27 and 29.

Dr. Nurul Islam vs. Bangladesh and others; 1BLD (AD) 140

Ref: A.IR. l958 (SC)538; A.LR. 1955 4SC)191;PLD1957(SC)159;PLD1957 (SC) 9; A.I.R. 1961 (SC)552; PLDI 958(SC)4 1; A.I.R. 1956(SC)44; (1968) 1 All. E.R. 694; A.I.R. 1954 (SC) 369; A.I.R. 1957 (SC) 892; A.I.R. 1965 (SC) 280; A.I.R. 1975 (SC) 1487; A.I.R. 1970 (All) 269; A.I.R. 1972 (Mys) 71; PLD 1967(Lah) 227; PLD1959 (SC) 37; PLD 1971 (Kar) 333; 19DLR(SC)281; 1957 SCA. 660.

 

Section — 2(d)

Public Servant—Public servant includes any person who is in the service of the Republic, corporation, nationalised enterprise or local authority as defined in clause (d) of section 2 of the Public Servants (Retirement) Act, 1974.

Golam Morshed Vs. Bangladesh Textile Mills Corporation & ors., 1BLD (HCD) 420

 

Sections — 3 and 4

Service—Termination of service— Simple termination of service of any employee of any statutory corporation even invoking any provision of any contract or terms of service is grossly violative of the provision of section 4 read with section 3 of the Public Servants (Retirement) Act, 1974.

Golam Morshed Vs. Bangladesh Textile Mills Corporation and others, 1 BLD (HCD)420

 

Section —4

Termination of service In the absence of any publication of Rules and Regulations relating to terms and conditions of service in terms of Articles 24 and 25 of P.O. No. 27 of 1972 and without holding a proceeding there under upon giving a cause, no employee of a statutory corporation can be dismissed, removed or even terminated from service prior to attainment of the age of retirement as specified in Public Servants (Retirement) Act, 1974 — Bangladesh, Industrial Enterprises (Nationalisation) Order,1972 (P.O. 27 of 1972), Articles, 24 and 25. -

Golam Morshed Vs. Bangladesh Textile Mills Corporation & ors., 1 BLD (HCD) 420.

Ref: IBLD 86—Cited.

 

Section — 9(2)

Compulsory retirement—Section 9(2) of Act XII of 1974 conferring unfettered discretion on the Government in the matter of compulsory retirement without any guideline either in the Act or in the rules framed there under is violative of equality clause of the Constitution. — Constitution of Bangladesh, 1972, Articles 27 and 29.

 

Per F. Munim, J:

Since neither the impugned provisions nor the Act nor the rules containing them provide any principle or guideline for the exercise of discretion by the Government when it proposes to retire a Government servant from amongst a group of government servants similarly situated and holding similar jobs, there invariably exists scope far arbitrary exercise of such discretion. What is of importance and consequence to the Government servant concerned, who is proposed to be retired, is that the discretion of the relevant authority must be seen to have been exercised on some such principles as are discernible in Fundamental Rule 56, Note 2, East Bengal .Service Rule and Rule 3 of the Bangladesh Public Servants Retirement Rules, 1973. Where such basis has been provided by the enunciation of such principles, whether under the Act or rules made under an Act or even in the note to such rules regarding the retirement of government servants, the concerned authority before exercising its discretion, has to conform to the principles so provided therein ... The omission of such basis in the Public Servants (Retirement) Rules, 1975 leaves scope to the concerned authority to arbitrarily retire a Government servant who has completed 25 years of service. The existence of such principles as are found in the Rules of 1973 would have provided a complete answer to any challenge to their constitutionality, inspite of the expression “without assigning any reason’ used in section 9(2) of the Act. In such a case the authority concerned would have remained free, so as not to disclose any reason in the retirement order, but if its action in retiring a Government servant was challenged as arbitrary, as has been done by the appellant in the present case, them authority could have disclosed before the Court the basis of its action.

 

Per F. Munim, J:

The minimum principle or guideline as has been provided in service rules as appear from the cases cited in the judgment is that of public interest or the interest of public service. If either the impugned Act or the rules made there under provided such principle, the minimum requirement of law as showing the existence of some guideline for the exercise of discretion in retiring a Government servant, who has completed 25 years of service, would, be satisfied, thus making it immune from any challenge on the ground of d crimination violative of Arts. 27 and 29 of Constitution. In the absence of such a guide line either in the Act or the rules from there under, section 9(2) of Act XII of 19 suffers from unconstitutionality and the I pugned action based on it is open to the chalenge as being discriminatory and in violatof the equality provisions of the Constitution

Ref: A.I.R. I 958(SC)538; A.I.R. I 955(

191; PLD 1957 (SC)l59; PLD1959(SCk A.I.R. 196 l(SC)552; PLD I 958(SC)4 1; A.I.R.. 1956 (SC) 44; (1968) lAll. E.R.694; A.IR.. 1954 (SC) 369; A.I.R.l957 (SC) 892; A.L 1965 (SC) 280; A.I.R.l975(SC)1487; AJL 1970 (AlI)296; A.I.R.1972(Mys)7l; PLDI96 (Lah) 227; PLD1959(SC) 37; PLDI97I (K 333; I9DLR(SC) 281; 1957SCA 660—CiteL

 

 

 

Per Ruhul Islam, J:

In the absence of any principle or guide line for the exercise of uncontrolled and unqualified discretion, S. 9(2) of the Act vided the scope to the authority to pick choose and to discriminate between Government servants similarly placed on complete of 25 years of service in the matter of premature retirement and as such discrimination - inherent in the Act itself and S. 9(2) is violative of Articles 27 and 29.

 

Per B.H. Chowdhury, J:

Neither the Act nor the rules provide a principle or guideline for the exercise of discretion by the Government when it proposed to retire a Government servant under S. 9(2. In such case the scope for arbitrary exercise i discretion cannot be ruled out as happened this case.

Dr. Nurul islam Vs. Bangladesh aad others, 1BLD (AD) 140

 

Section — 9(2)

Section 9(2) of Act XII of 1974 permitting an impugned notification prematurely retiring appellant without affording him opportunity of showing cause is violative of Artclee 135 of the Constitution.

 

Per Ruhul Islam, J:

Premature retirement is per se a punishment, because the Government servant is –prived of his right to continue in service until he attains the age of superannuation and he loses the benefit of service accrued to him. Termination of service before his superannuation is undoubtedly removal if not termed as ‘dismissal’.. It is true that the (impugned) order does not contain any stigma, but the very fact that the appellant was selected out of a number of persons similarly placed, and consequently he has been deprived not only from continuing in the employment for the remaining period of his term of service but also from some of the service benefits accrued to him, makes out a case of punishment. In effect, whatever may be the phraseology used in terminating the service, it is punishment imposed on him, for it not only destroys his right to the post held by him, but also inevitably carries with it a stigma. Such a termination is ‘removal’ within the meaning of Article 135 of the Constitution. Therefore the statute or rule providing a mode of terminating service at the discretion of the authority without complying with impugned action having been taken against the appellant without issuing any notice upon him or giving him an opportunity of being heard before taking the impugned action, the impugned notification is violative of Article 1 35 of the Constitution.

Ref: A.I.R.1958 (SC) 36; A.I.R. 1954 (SC) 369; A.I.R.1964 (SC) 600; A.I.R.1975 (SC) l487 —Cited.

 

 

 

Per S. Ahmed, J:

A Government servant is retired with full pension after 25 years service not as a measure of punishment. It does not bear any stigma, nor any imputation is made or allegation is brought against the Government servant when thus retired with pension ... The Indian Supreme Court has consistently held that premature retirement is not a punishment and it does not amount to removal.

Ref: A.I.R1954SC369; A.I.R1965SC280; A.1.R.1965 SC1967; A.I.R.1975SC487 — Cited.

Dr. Nurul Islam Vs. Bangladesh and others, 1BLD (AD) 140

 

Section—9(2)

Government Servant — Compulsory retirement For validity of an order of compulsory retirement, Government must form an opinion as to the necessity of retiring an employee in public interest — There1must be materials to support that the employees retirement is necessary in public interest —. Public Servants (Retirement) (Amendment) Ordinance, 1981 (VI of 1981), S—4.

A.K.M. Arshad Ali Vs. Government of Bangladesh, 1BLD (HCD)399

Ref: I BLD (AD)140 — Relied.

 

Section — 9(2)

Government Servant—Compulsory retirement—Fundamental right to equality— Government record must show that the Government has considered the necessity of such retirement and the retirement is in public interest—Government did not apply its mind as to why amongst 34 doctors who completed 25 years of service the petitioner should be signed out for compulsory retirement— Such retirement must be held to be discriminatory and ordered with ulterior motive—Constitution of Bangladesh, 1972, Articles 27 and 29.

Dr. Abu Ahmed chowdhury Vs Bangladesh, 2BLD (HCD) 98

Ref: I BLD (AD) 140; 1BLD 399 — relied.

 

Section — 9(2)

Service matter — Order of retirement— It’s validity — There is no instance of misconduct on the part of the respondent prior to passing of the impugned order of retirement — According to the Government the action was taken with a view to enforcing strict discipline in the office — Such justification for taking exemplary punishment only on finding the respondent absent for a short period is undoubtedly arbitrary — Law does not empower the Government to päs such arbitrary order of retirement. [Per Ruhul Islam, J.]

Habibullah Khan Vs. Shah Azharuddin Ahmed and others, 3 BLD(AD)143

 

Section—9(2)

 

Retirement order - In what case retirement should be resorted to is a matter within the absolute discretion of the authorities — Retirement with full pensionary benefits after completion of 25 years service is not a punishment nor does it contain any stigma — Even if respondent’s punishment has been referred to as an exemplary punishment in the office file, still then when the action of the Government is found to have been taken in accordance with law and there is no malafide therein, it cannot be assailed as arbitrary. [Per Shahabuddin Ahmed, J. (dissenting)]

 

Public interest — A person aggrieved by retirement order may contend that the order was not in the public interest — Government is the better judge to decide what is public interest.

There may be various reasons for which the Government may retire a Government servant after he completed the requisite period of service qualifying for pension; the Government is in a better position to decide whom to retire. It is not possible for a Court to sit on judgment over Government’s action if from the facts disclosed it does not appear that Government’s action was malafide or courable exercise of power. Subject to these limitations, the discretion of the Government in such a matter is absolute. The Court may call for record only to see that the Government had some materials for deciding that retirement of a Government servant was considered necessary in the public interest and that order of retirement was not malafide — In this case the order of retirement is found to be perfectly lawful. [Per Shahabuddin Ahmed J. (dissenting).]

Public interest—Whether order of retirement is in public interest can be examined by the Court — The Court may declare it not in public interest after examining materials produced. [Per Fazie Munim, J.]

Habibullah Khan Vs. Shah Azharuddin Ahmed and others, 3 BLD (AD) 143

Ref: 33DLR (AD)20 1; PLD1958SC 181; I 97OPLDSC98; PLD1 969(SC)14—discussed.

 

529

Railway Establishment Code

Citation: 6 BLC (AD) 94

Subject: Railway Establishment Code

Delivery Date: 2018-05-20

Railway Establishment Code

 

Rules 1717 and 1725

 

Considering the legal position the Administrative Tribunal found that the case was filed well within time. The Administrative Appellate Tribunal also came to the finding that the respondent had option to move the Director-General under Rule 1725 of the Railway Establishment Code which has been accordingly done and the case has been filed within six months from the order passed by the Director-General. No illegality and wrong has been committed by the Tribunals below.

 

Director-General/ Secretary, Railway Division and others vs Md Elahi Baksha 6 BLC (AD) 94.

530

Registration Act, 1908

Citation: 9 BLC 624, 7 BLC 90, 6 BLC 467, 10 BLC (AD) 11, 8 BLC 24, 6 BLC (AD) 85,9 BLC (AD) 114, 9 BLC 596, 10 BLC 48

Case Year: 1908

Subject: Registration Act, 1908

Delivery Date: 2018-05-20

Registration Act, 1908

(XVI of 1908)

 

Sections 7(2), 30, 68 and 72

 

The provision of Notification No. 120. Misc dated 28-6-1923 of the Government of Bengal issued under section 7(2) of the Registration Act, 1908 amalgamating all sub-registrars in-charge of Sadar Office with the office of the Registrar and authorising such sub-registrars to exercise and perform all the powers and duties to the Registrar including the powers under section 30 of the Registration Act to receive and register documents without regard to the location of the property except the powers under sections 68 and 72 of the Registration Act and that by virtue of the said Notification the Sadar Sub-Registrar Dhaka had authority and jurisdiction to receive and register the plaintiff petitioner's documents of purchase of the suit land.

 

Abdul Kader Chokdar & others vs ADC, (Revenue) and others 9 BLC 624.

 

Sections 17 and 49

 

Even if the 'Aposhbontannama', the Ext Ka is excluded from judicial consideration since the document is not admissible in evidence on the ground that the original was not called for and the photostat copy cannot be admitted in evidence the document itself is not a registered instrument according to the provision of Registration Act and that the same is not proved by any attesting witnesses but there are other materials to determine the question of oral partition.

 

Dr Ismat Mirza and other vs Md Mosaddek Hossain and ors 7 BLC 90.

 

Section 17(1)(B)

 

Tender schedule, terms and conditions of tender, profiles, the deed of agreement for sale, handing over possession, amendment of the agreement of the sale do not show the suit property was included as an item of "property intended to be ever sold or handed over to plaintiff. Trial Court approached erroneously the question of ownership of the suit property relying on some exhibits which never created title in defendant No. 4 company being absolutely oblivious of the mandatory provision of section 54 of the Transfer of Property Act and section 17(1)(B) of the Registration Act which rendered the impugned judgment and decree illegal as a whole.

 

Government of Bangladesh & others vs Paper Converting & Packaging Ltd & others 6 BLC 467.

 

Sections 28 and 30

 

Regarding registration of the deed of conveyance dated 19-8-65 at Karachi, section 30(2) of the Registration Act, as it stood on 19-8-65, provided that notwithstanding anything contained in section 28 any Registrar may receive and register any document without regard to the situation in any part of Pakistan of the property to which the document relates if he is satisfied that there is sufficient cause for doing so. Section 28(2) of the Evidence Act provides that notwithstanding anything contained in sub-section (1) after a document is registered, no party thereto shall be entitled to question the validity of its registration.

 

Rupali Bank Ltd and another vs Shawkat Ara Salauddin and anothe 10 BLC (AD) U.

 

Sections 32 and 77

 

The deed in question was not presented for registration by the person as described in section 32 of the Registration Act. In order to get registration of a deed relating to immova­ble property the mandatory provisions of Articles 4 and 5 of the President's Order No. 142 of 1972 and section 32 of the Registration Act must be complied with. As the sale deed was not properly presented for registration before the District Registrar, he rightly refused to register the same.

 

Nargis Begum vs Ezaz Ahmed 8 BLC 24.

 

Section 60

 

The consistent view of the apex courts of this Sub-Continent is that not only a gift under Mohammadan Law but also under the Transfer of Property Act, a gift must be coupled with acceptance and delivery of possession of the property. Mere registration of such deed of gift is not at all sufficient, something more has to be done for making a valid gift which is lacking in the present case.

 

Bangladesh, represented by the Secretary, Ministry of Housing and Public Works & another vs Shirely Anny Ansari 6 BLC (AD) 85 .

 

Section 60

 

Whatever transaction took place between the pre-emptees and their vendor was a product of collusion and the transaction is tainted with fraud and the said transaction was made collusively and fraudulently by the pre-emptee and the original vendor only to defeat the claim of the pre-emptor. The reconveyance transaction being tainted with fraud and collusion the same can in no way deprive the pre-emptor of his claim of pre-emption and in a case like the present one if the pre­emption is rejected that would amount to giving premium to the fraudulent and collusive transaction between the original owner and the pre-emptees. The law is settled now that the right of pre-emption accrues on the registration of the kabala sought to be pre-empted.

 

Ambiya Khatun and others vs Noor Ahmed and others 9 BLC (AD) 114.

 

Section 60

 

In view of presumption arising out of registration of sale deed conveying title in the suit land, the learned Joint District Judge fell in serious error in thinking that the plaintiffs have got an arguable case. The impugned order of status quo therefore cannot be sustained in law.

 

 Golden Tower International Ltd and others vs Md Sazzad AH and others 9 BLC 596.

 

Section 60

 

The deed in question is admitted by the plaintiff and such a duly executed, signed and registered deed always carries a presumption of genuineness. The question of fiduciary relationship between the executant and the recipient of the deed in question was not raised in the pleading and no evidence was led to that direction proving bonafide or good faith of the transaction as contemplated under section 111 of the Evidence Act.

 

Raoshanara Begum and anr vs Sokhina Khatun and ors 10 BLC 48.

531

Regulation of Ad-hoc Employees Appointment Rules, 1994

Citation: 9 BLC 116

Case Year: 1994

Subject: Regulation of Ad-hoc Employees Appointment

Delivery Date: 2018-05-20

Regulation of Ad-hoc Employees Appointment Rules, 1994

 

Rules 4(l)(Ka) and 5(1)

 

The petiti­oners having the service of the BSTI in the post of Inspector (Meteorology) in 1983 and also having enjoyed all the rights and privileges attached to the service have acquired a vested right to have their seniority counted from the date of their appointment in 1983 and not from 1-7-86 purportedly shown as the date of regularisation of service. Such regularisa-tion of service is palpably illegal and without jurisdiction inasmuch as it is done at a such belated stage nearly 14 years of their appointment and that too in violation of the principle of natural justice. On the conclusion of the project on 30-3-94 service of Md Khademul Islam respondent 3 in Writ Petition No. 4012 of 1999 in the project as Assistant Director was terminated and he was out of service for more than 6 months and subsequently, Md Khademul Islam was appointed afresh as an Assistant Director (Meteorology) in the revenue budget of the BSTI on 9-10-94 and his such appointment in the revenue budget of the BSTI was a fresh appointment and thus the continuity of his service as Assistant Director was broken as he was out of service for more than 6 months. Hence the impugned order of bridging up of the service gap of Khademul Islam is declared illegal and without jurisdiction and is accordingly, set aside.

 

It is palpably clear that respondent Khademul Islam was junior to both the petitioners, Mohammed Ali and Md Abu Hossain in service not only as Inspector but also as Assistant Director (Meteorology). Thus the promotion of respondent Khademul Islam to the post of Deputy Director (Meteorology) in the BSTI on 31-5-99 without considering the case of above petitioners for promotion is palpably illegal and without jurisdiction.

 

Mohammad Ali vs Bangladesh Standard & Testing Institution (BSTI) and others 9 BLC 116.

532

Representation of the People Order, 1972

Citation: 6 BLC(AD) 45, 7 BLC (AD) 172, 9 BLC (AD) 10

Case Year: 1972

Subject: Representation of the People

Delivery Date: 2018-05-20

Representation of the People Order, 1972

[po no. 155 of 1972]

 

Articles 14(5) and 51(l)(a)

 

Respondent No. 2 having raised the question of petitioner's being defaulter at the time of election should be decided by the Election Tribunal after recording evidence as has been correctly found by the High Court Division and it has not acted arbitrarily or fancifully in awarding the cost of Taka 10,000.00 as the writ-petitioner has suppressed the fact.

 

Mahbubur Rahman vs Divisional Election Tribunal and others 6 BLC(AD) 45.

 

Article 25(2)

 

Whether the polls in 7 Centres of Munshiganj-4 Constituency were at all interrupted or not and whether the same was for the reasons beyond the control of the Presiding Officers and that it could not resume during the polling hours could only be decided taking evidence before the Tribunal in the event of any application before the Election Tribunal by any party to the election. On being reported about the obstruction and interruption and that the poll has been stopped the Election Commission ordered for re-election in those centres as the entire election process has to be completed by the Election Commission in order to promote the cause of democracy. The disputed questions of fact that emerged in this leave petition is also beyond the scope and cannot be decided in this jurisdiction. There is no illegality in the impugned order or any arbitrary exercise of power which is malafide or that the memo was issued to circumvent the provision of law resulting in malice in law or want of jurisdiction resulting in coram non-judice as alleged by the petitioner but pursuant to memo dated 1-10-01, fresh poll was ordered in 7 centres including 3 centres under the provision of Article 25(2) of the Representation of the People's Order.

 

Mohiuddin Ahmed (Md) vs Chief Election Commissioner and others 7 BLC (AD) 172.

 

Articles 49(4) and 51

 

The words that the petitioner shall deposit, as contained in Article 49(4) of the Representation of the People Order, 1972 do not mean that the petitioner shall, in person, have to deposit and not by anyone else on his behalf and, if so, the Election Petition shall not be registered. Thus, the presenting of the Election Petition with deposit of Taka two thousand is a must and it is mandatory but the mode of depositing the same by the petitioner alone is not mandatory, rather it is directory.

 

Giasuddin Quader Choivdhury. vs ABM Fazle Karim Chowdhury and others 9 BLC (AD) 10.

533

Rural Electrification Board Ordinance, 1977

Citation: 10 BLC 502

Case Year: 1977

Subject: Rural Electrification Board Ordinance, 1977

Delivery Date: 2018-05-20

Rural Electrification Board Ordinance, 1977

[li of 1977]

 

Sections 2(f), 8 and 22

 

It appears from section 8 of the said Ordinance that the REB is empowered to form Palli Bidyut Samities and Companies as well as to carry out the purpose of the Ordinance. Accordingly, REB has formed formal Palli Bidyut Samities under its regulations which has been defined in section 2(f) of the Ordinance as meaning Palli Samities formed under the Ordinance and registered with the REB. These Palli Bidyut Samities are also empowered to subscribe to the fund of any Association or Company from its own fund. From the documents on record it appears that RPC Limited, the respondent No. 5, has been created by the direction of the Government of Bangladesh under the provisions of Statute, the Ordinance No. LI of 1977 and fund which the respondent No. 5 is using in furthering its object is public fund coming from the public exchequer which clearly established that the Government was the instrumental to the RPC Limited in the Power Sector which has public character discharging public functions.

 

Abdus Sabur (Md) vs Rural Electrification Board 10 BLC 502.

534

Sadharan Bima Corporation Karmachari (ObasarVatha-o- Obasar Janita Shubidhadi) Regulations, 1988

Citation: 7 BLC 724

Case Year: 1988

Subject: Sadharan Bima Corporation Karmachari (ObasarVatha-o- Obasar Janita Shubidhadi) Regulations, 1988

Delivery Date: 2018-05-20

Sadharan Bima Corporation Karmachari (ObasarVatha-o-

Obasar Janita Shubidhadi) Regulations, 1988

 

Regulations 9, 11 and 12

 

It appears that the Merchantile Fire and General Insurance Company Ltd is included in Part B and the.Central Insurance Company Ltd is included in Part A of the schedule of the Bangladesh Insurance (Nationalisation) Order, 1972 (PO 95 of 1972) and as such service of the petitioner in these two companies is countable under Regulation 11 (5) (a) of the Sadharan Bima Corporation Karmachari Regulations, 1988 when Regulation 11(5) also provides that if any employee has served in one or more institution mentioned in Part A and B of the Schedule of PO 95 of 1972 that service shall also be included in the countable service for the purpose of the Regulations of 1988. Service in more than one institutions, as mentioned in Regulation 11(5) is not simultaneous but successive. The petitioner's service in the two Insurance companies prior to nationalisation is, therefore, countable service for the purpose of counting 25 years of service. The intended meaning of Regulation 11(5) is to give continuity of service of an employee who has served in the schedule institutions one after another for the purpose of counting 25 years of service. The petitioner's resignation from one company and joining the other will not disqualify him from continuity of service nor he be deprived of his pension and other retirement benefits ensured by the Regulations of 1988. Accordingly, respondent 3 was directed to accept voluntary retirement of the petitioner from service and pay pension and other benefits as per the said Regulations of 1988.

 

Abdul Matin vs Bangladesh represented by the Secretary Ministry of Commerce 7 BLC 724.

535

Service Regulation of Bangladesh Council of Scientific and Industrial Research Regulations 14 & 55 Schedule

Citation: 7 BLC 44

Subject: Service Regulation of Bangladesh Council of Scientific and Industrial Research Regulations 14 & 55 Schedule

Delivery Date: 2018-05-20

Service Regulation of Bangladesh Council of Scientific and Industrial Research Regulations 14 & 55 Schedule

 

Serial No. 15

 

Petitioner has challenged the impugned advertisement in so far it relates to recruitment of the one Principal Engineer (Chemical) and for direction to consider the case of the petitioner for promotion to the post of Principal Engineer of the Council whereupon the Rule Nisi was issued. The petitioner has all the requisite qualification and experience for getting promotion to the post of Principal Engineer and he also applied for such promotion but his case was not considered and hence, the impugned advertisement published by respondents is declared to have been issued without lawful authority and is of no legal effect. Accordingly, the respondents are.directed to consider the petitioner's case for promotion to the post of Principal Engineer (Chemical) in accordance with law.

 

M Abu Raihan vs Secretary, Ministry of Science and Technology, Bangladesh Secretariat and others 7 BLC 44.

 

536

Services (Pay and Allowances)

Citation: 7 BLC 236

Subject: Services (Pay and Allowances)

Delivery Date: 2018-05-20

Services (Pay and Allowances)

 

Article 2(d)

 

Since the petitioner was not an employee under the Revenue Budget and he cannot be treated as a Government Servant and as such he cannot claim the benefit of the Time Scale, Selection Scale as are allowed by the Services (Pay and Allowances) Order for the years 1985, 1991 and 1997 and there are no illegality or irregularity in the impugned orders and in the audit report.

 

Belayet Hossain (Md) vs DG, Directorate of Civil Audit and others 7 BLC 236.

537

Services (Pay and Allowances)

Citation: 7 BLC 236

Subject: Services (Pay and Allowances)

Delivery Date: 2018-05-23

Services (Pay and Allowances)

 

Article 2(d)

 

Since the petitioner was not an employee under the Revenue Budget and he cannot be treated as a Government Servant and as such he cannot claim the benefit of the Time Scale, Selection Scale as are allowed by the Services (Pay and Allowances) Order for the years 1985, 1991 and 1997 and there are no illegality or irregularity in the impugned orders and in the audit report.

 

Belayet Hossain (Md) vs DG, Directorate of Civil Audit and others 7 BLC 236.

 

538

Services (Reorganisation and Conditions) Act, 1975

Citation: 60 others 6 BLC (AD) 7, 6 BLC (AD) 53,

Case Year: 1975

Subject: Services (Reorganisation and Conditions)

Delivery Date: 2018-05-23

Services (Reorganisation and Conditions) Act, 1975

[xxxn of 1975]

 

Section 4

 

Respondent Nos. 2-61 belong to 1st BCS Examination whilst the appellants' batch belongs to 2nd BCS Examination and hence appellants are as a batch junior to the respondents. The amended sub-rule 3(g) is neither illegal nor in contravention to the conditions laid down in the advertisement- The notional date of joining had to be worked out" in order to make the seniority of the first BCS batch consistent with the BCS Seniority Rules of 1983. There is no scope for any confusion as to the inter-se seniority between the appellants and respondent Nos. 2-61 as the respondents are senior in the service to the appellants.

 

AHM Mustain Billah and 4 others vs Bangladesh and 60 others 6 BLC (AD) 7.

 

Section 4

 

In exercise of power under section 4 of the Services (Reorganisation and Conditions) Act, 1975 the Health Directorate and Family Planning Directorate Order 1978 was published in the official Gazette on 27-12-98 being SRO No. 293 which having not been challenged the petitioner cannot challenge the subsequent order and notifications, etc. made in exercise of power given in the said SRO.

 

Syeedur Rahman Khan (Md) vs Secretary, Ministry of Health and Family Welfare 6 BLC (AD) 53.

539

Small Cause Courts Act, 1887

Citation: 7 BLC 39, 6 BLC (AD) 115, 8 BLC (AD) 18, 9 BLC (AD) 211, 8 BLC 37, 8 BLC 414

Case Year: 1887

Subject: Small Cause Courts Act, 1887

Delivery Date: 2018-05-23

Small Cause Courts Act, 1887

[IX of 1887]

 

Section 15

 

The suit is neither for possession nor for recovery of an interest in the suit property, rather, it is a suit for ejectment of a tenant, the defendant-petitioner and as such is not excluded as mandated under Article 4 of the second schedule and thus triable by Court of Small Cause under section 15 of the Act.

 

Gazinr Rahman (Md) vs Md Mafizul Islam 7 BLC 39.

 

Section 23

 

There is no absolute bar to the Courts of Small Cause to consider title incidentally while deciding a case between a landlord and a tenant. Any decision on title in an SCC suit does not preclude a suit for title. Under section 23 of the Small Cause Courts Act the Court in its discretion may return the plaint only if it thinks that the determination of the relationship of landlord and tenant depends upon resolution of a question of title and thus, the Court of Small Causes was quite competent to entertain and dispose of the suit where there has been no haze about tht relationship between the plaintiff and the defendant as landlord and tenant.

 

Selina Begum vs Azizun Nessa 6 BLC (AD) 115.

 

Section 23

 

High Court Division ought to have passed order in terms of section 23 of the Small Cause Courts Act which provides that in a case where a question of title is involved it is the proper course to act under the said' section to return the plaint to be presented to a Court having jurisdiction to determine the title.

 

Ratan Chandra Roy vs Rehana & Rehana Ahmed and others 8 BLC (AD) 18.

 

Section 23

 

The respondent before the trial Court filed an application for returning the plaint. As the suit involves a question of title and in view of the submission made on behalf of the respondent let the plaint be returned to the plaintiff.

 

 Narayan Chandra Barker vs Abdur Rahman 9 BLC (AD) 211.

 

Section 25

 

Upon Perusal of the Ext. 4-kha, a copy of the notice under section 106 of the Transfer of Property Act dated 24-7-1993, learned SSC Judge came to his finding that the tenant-petitioner himself received the copy of the notice by signing his name on the copy of the said notice on 1-8-1993 and on comparison with the signature of the tenant-petitioner with other documents on record, he reached to his decision that the signature of the tenant-petitioner appearing in Ext 4-kha tallies with that of other documents on record and such finding of fact being based on evidence on record cannot be disturbed by the High Court Division in its revisional jurisdiction.

 

Mohammad Islam vs Rahicha Khatoon 8 BLC 37.

 

Section 25

 

It has been found by the trial Court that the plaintiff in Title Suit No. 243 of 1997 has been possessing the suit land by virtue of the agreement dated 3-11-82 and she or her husband is not a tenant of the (defendant in Title Suit No. 243 of 1997) plaintiff in SCC Suit No. 16 of 1997 which cannot be decreed and the learned appellate Court committed error of law in decreeing SSC Suit No. 16 of 1997 calling for interference by the High Court Division.

 

Kajol Das and others vs Manowara Begum and ors 8 BLC 414.

540

Specific Relief Act, 1877

Citation: 10 BLT (AD)-103, 3BLT (AD)-190, 3BLT (AD)-190, 10 BLT (HCD)-83, 9 BLT (HCD)-251, 12 BLT (AD)253, 14 BLT (HCD)525, 12 BLT (HCD)-28, Section -22, 4 BLT (AD)-144, 9BLT(HCD)-197, 2BLT (AD)-175, 2BLT(AD)-175, 13 BLT (AD)145, 10 BLT (HCD)-274, Section-39, 10

Subject: Specific Relief

Delivery Date: 1970-01-01

 

 

Specific Relief Act, 1877 [1 of 1877]

Sections-5 and 56

Suit for permanent injunction - Held The High Court Division has rightly held that in a suit for permanent injunction simplicitor an issue whether the registered deed is forged or not cannot be decided. Such a question is to be decided in a separate suit.

Sushil Kumer Paik & Anr. Vs. Harendra Nath Samadder &anr. 10 BLT (AD)-103

Section- 9

Specific Performance of Contract — Contract having been mutually cancelled by issuing a cheque by the petitioner refunding the earnest money the non-enactment of the cheque might entail other consequences, but that cannot revive the terminated contract as contended by the learned counsel of the petitioners.

Held : Although respondent No. 1 accepted the cheque from the petitioner in good faith he did not hand over the agreement to the petitioner and as the cheque was dishonoured by the Bank, the agreement remained in force and as such the suit for specific performance of contract was very much maintainable. Therefore it cannot be said that the contract was mutually cancelled and the suit for specific performance of contract was not maintainable.

Major (Retd) Md. Afsar Uddin Vs Kamal Rahman & Ors. 3BLT (AD)-190

Section-9

Under Section 9 of the Act any person is entitled to institute a suit for possession when he was without his consent dispossessed of immovable property otherwise than in due course of law. The section provides for a summary procedure in order to discourage people to take law in their own hands however good their title may be, Even Government under the rule of law as enshrined in our Constitution has no power to dispossess a citizen from immovable property without due process of law.

M/S Shan Hosiery Vs. Bangladesh Jatiya Shamabaya Shilpa Samitee Ltd. & Ors. 10 BLT (HCD)-83

Section-9

Constructive possession of a sub-lessee tenant

In the facts and circumstances of the case, the nature of the possession of defendant no.2 also demands consideration for the decision in the suit. It is not disputed that under the monthly lease agreement any kind of sublease was prohibited. Possession of the plaintiff as a monthly tenant was the constructive possession of her landlord, defendant No.1 If such monthly tenant allows someone as subleassee to enter into possession of the leased shop by infracting the terms of the lease, and without the consent of the landlord, the possession of such sub lessee cannot of the tenant, to be the constructive possession of the tenant for purpose of a suit under section 9 of Specific Relief Act. Because, in case of dispute, such tenant is not entitled to maintain a suit for ejectment of such sub lessee under the laws of monthly tenancy

Jabun Nessa Zaman & Ors Vs Hosneara Lili 9 BLT (HCD)-251

Section-9

The High Court Division in our view rightly found that the suit is maintainable inasmuch as the suit premises does not belong to Government. It further appears that the High Court Division found that the defendant Nos. 1-2 along with the ‘Gondas’ entered into the suit premises, drove away the employees and staffs of the plaintiff by beating them up and thereby dispossessed the plaintiff-respondents from the suit premises and this aspect has not been considered by the learned Subordinate Judge and as such the learned Subordinate Judge wrongly took the view that the suit was not filed within 6 (six) months of his possession and rejected the plaint on some extraneous consideration.

Bangladesh Jatiya Samabaya Shilpa Samity Ltd Vs. M/S. Shan Hosiery & Ors 12 BLT (AD)253

Section —9

The Plaintiff’s case is that the suit land belonged to the defendants Nos. 1-3 who entered into a contract for sale of the suit land in favour of the plaintiff. He paid the entire consideration money but the Kabala deed was not executed and registered but he was handed over possession in the suit land. While he was in possession by running a furniture business, he was dispossessed —Held: From the evidences of both the parties it is crystal clear like sunshine of broad daylight that the plaintiff while was running his furniture business in the suit hut, was dispossessed by the defendant on 19.9.1997. The suit having been filed within 2(two) months of the date of dispossession, the same was maintainable under Section 9 of the Specific Relief Act.

Akram alias Akram Goldar Vs.Chandi Charan Mondal & Ors 14 BLT (HCD)525

Section-12 read with Limitation Act, 1908, Section-19

Section 19 of the Limitation Act provides that before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgement of liability, in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall he computed from the time when the acknowledgement was signed. The acknowledgement to take effect for fresh computation of the period of limitation must be proved to be of a time before the expiration of the period prescribed for an action and secondly, must he in writing and lastly, be signed by the person against whom the right is claimed.

Saroj Kanta Sarker & Ors. Vs. Seraj-ud-Dowla &  Ors 12 BLT (HCD)-28

Section -22

Hardship—the petitioner didn’t even make out a case for relief—under section 22 of the Specific Relief Act before the High Court Division — belated plea of the hardship cannot be accepted.

B. C. Barua Vs. S. C. Barua & Ors. 4 BLT (AD)-144

Section-22

Suit for specific performance of an agreement for sale of land—the agreement, Exhibit-3-----it is written on a sheet of non judicial stamp, It is an unilateral agreement and written addressing Amir Hossain Miah (father of the plaintiff Sharijan Nessa) agreed to sell the land at a to sell the land at a price of Taka 60,000.00 and on receipt of Taka 37,000.00 as earnest money promised and requested to take the ‘Kabala; within 3 months of payment of the balance of Taka 23,000.00 Possession of the land was also delivered. On the back of the stamp, out of the balance on 28.11.1979 she received in writing Taka 8,000.00 and on 12.12.1979 Taka 15,000.00 from the plaintiff in presence of the witnesses. It also appears that on 16.02.1982 said Amir Hossain by an ‘Ekrarnama’ exhibit 13 demitted the case of the plaintiff that the earnest money of Taka 37,000 was paid out of the money kept in him by the plaintiff that his name wrongly crept in the agreement that the plaintiff actually obtained the agreement, the plaintiff then paid the balance of the agreement, the plaintiff got possession and that he had no interest in the land under the agreement. Amir Hossain died in 1989. This ‘Ekrarnama’ was proved by PW.-5 younger brother of the plaintiff . He also testified that the plaintiff purchased the land and paid the entire consideration. Besides the evidence of the plaintiff as PW-1, PW-2 the scribe of the agreement also testified that the agreement executed between the plaintiff and Sharijan Nessa was written by him. But the defendant No.11 did not cross-examine them on the question who purchased the land. Moreover the defendants no.1 and 2 sons of said Sharijan Nessa have not come forward to contest the claim of the plaintiff. The petitioner as DW- 1 testified that if the plaintiff got an agreement from Sharijan Nessa that would not be effective in respect of his share. In the circumstances and on the above evidence the intention of the parties did not leave any doubt to sell the land to the plaintiff and the trail Court rightly exercised in discretion in decreeing specific performance of the agreement exhibit No. 3. The Court of appeal below therefore did not commit any error in accepting the agreement and affirming the decree for specific performance.

Md. Eser Ali Sheik Vs. Md Mokarram Ali & Ors. 9BLT(HCD)-197

Sections-22 (11), 24 (b) and 28(a)

(a) Section 22 (11) — ‘Hardship’ means hardship considered in the circumstances that existed at the time the contract was made — enforcement of a contract of refusal to enforce it lies in the courts discretion — the discretion of the Court is not arbitrary, but sound and reasonable, guided by judicial principles and capable of correction by a Court of Appeal.

Quazi Din Mohammad Vs Alhaj Arzan Ali & Anr. 2BLT (AD)-175

(b) Section 24(b) — Failure to deposit the balance before filing the suit does not constitute violation of any term of the contract to deposit of the balance is not an essential term of the contract the violation of which will render the whole contract unforceable.

Quazi Din Mohammad Vs Alhaj Arzan Ali & Anr. 2BLT(AD)-175

(c) Section 28 (a) — To attract this subsection, on inadequate price must be an evidence of fraud or of undue advantage taken by the plaintiff— Evidence on record shows that negotiation for the agreement was made and price was settled through the appellant’s relation and benefactor Asgar Hossain (P.W.4) — Asgar Hossain proved to be the appellant’s ‘friend in need’ as well as ‘friend in deed’. As to the respondent the appellant expressed full confidence in him there is no scope for any doubt that these two persons had by fraud or by taking undue advantage got the agreement executed at a grossly inadequate price. With reference to the state of things existing at the date of the agreement — the consideration was not grossly inadequate.

Quazi Din Mohammad Vs Alhaj Arzan Ali & Anr. 2BLT(AD)-175

Section-27 clause-(b)

Specific performance of a contract may be enforced against “any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract”. The expression “under him” is referable to clause (a) of Section 27 i.e. either party to the contract. In view of the aforesaid provision of law as the defendant No.2 had acquired title to the property as regard which defendant No.1 earlier entered into an agreement for sale with the plaintiffs and as we have already held that defendant No. 2 failed to establish that he has purchased the property in question in good faith without notice of the original contract the High Court Division was quite correct in decreeing the suit against the defendants and in making direction to the defendant No. 2 to execute and register the kabala in favour of the plaintiffs.

Hajee Lal Mia Vs. Nurul Amin & Ors. 13 BLT (AD)145

Section-27(b) read with Transfer of Property Act, 1882 Section-53 (a)

Under the provisions of Section 27(b) the interest of the plaintiff not at all protected since he entered into subsequent agreement in respect of the selfsame land with the selfsame vendors with full knowledge and notice of the agreement and also the suit brought for enforcement of the said agreement, Section 53(a) of the Transfer of Property Act does not entitle such a plaintiff to maintain a suit for specific performance of his subsequent agreement. Nor he can defend his possession, if any, he got on the basis of his agreement.

Md. Azizul Islam & Anr. Vs. Sheik Shamsur Rahman & Ors. 10 BLT (HCD)-274

Section-39

Held: I am of view that the plaintiff not being a party to the lease deed the prayer for cancellation of the same within the meaning of section 39 of the Specific Relief Act was not necessary, but in no case without such prayer and payment of advalorem court fees the plaintiff was not entitled to get a decree declaring the lease dated 11.07.1975, illegal as has been passed by the courts below as by such declaration in fact the registered lease deed of the defendant No. 5 has been cancelled.

Sugar & Food Industries Vs. Kashem Motors 12 BLT (HCD)-56

Section-39 read with Section-42

If a person in possession of a land on assertion of his right, title and interest finds a decree obtained by any other person in respect of such land affecting his interest or possession, or clouding his right or title in such land, he is always entitled to have such decree adjudged or declared void. Such suit will be governed by Section 39 not by Section 42 of the Specific Relief Act. When such person is not a party to such decree, he does need to get the decree set aside or cancelled. Under such law, he is also not required to seek further declaration that the decree is not binding upon him or that he has got title in the suit land.

Abul Kashem Howlader Vs. Sultan Ahmed & Ors. 10 BLT (HCD)-122

 

 

Section – 31

Plaintiff-father wanted to make a gift by way of Heba-bil-ewaz of .30 acres land, but fraudulently and illegally, the defendant who is the only son of the plaintiff obtained the disputed deed in respect of 1.7212 acres land showing it as a document of Heba-bil-ewaz fraudulently. But the plaintiff was all along in possession of the land in dispute excepting the said admitted .30 acres land—the relief should be prayed under section 31 of the Specific Relief Act by way of rectification of the documents since the execution and registration is accepted and since the plaintiff and the defendant are parties in the deed itself.

Zainal Abedin Vs. Maksuda Khatoon & Anr. 6BLT (HCD)-44

Section – 39

In the instant case the plaintiffs are executants of the kabala in question and therefore very much a party to the document. The kabala, as the facts indicate, is not certainly void but voidable. In order to remove the impediment in the way of the plaintiffs to get complete relief along with the declaration the plaintiffs needed to make a prayer for cancellation of the document on payment of advalorem Court fee.

Sree Chittaranjan Chakraborty Vs. Md. Abdur Rob 5BLT (AD)-135

Section-39

In the instant suit plaintiffs contention is that she executed the documents with intention that she was going to transfer only .09 acres land in favour of the defendant No. 1, but sub- sequentially she came to learn after taking out the certified copies of the documents that in the name of Heba-bil-ewaz about 60 bighas of land have been taken away in place of .09 acres land and her second contention is that no consideration, namely, the Holy Quran as written in the deeds have been paid to her from the side of the donee’s—plaintiff prayed for cancellation of the documents—Held: ft is very much maintainable.

Md. Nurul Islam & Ors. Vs. Azimom Bewa 6BLT (HCD)-116

Section-42

(a) Courts below did not assign any reason for finding the khatians to be erroneous and kabala to have no legal effect—Plaintiffs utterly failed to make out any such case of payment of rent to the Government— Contesting defendants paid rents for the year 1379-82 B.S. These go the show that all previous rents were paid by the recorded owners of the said land.

Madaris Ali & Ors Vs Biswamber Das 2BLT (HCD)-1

(b) Plaintiffs failed to prove their case of settlement of the suit land in their favour 40 years before the filing of the suit or that they acquired title in the suit land on the basis of adverse possession beyond the statutory period of limitation—Plaintiffs failed to prove their possession, in the suit land their simple suit for declaration of title is barred under the proviso to section 42 of Specific Relief Act for want of prayer for further relief.

Madaris Ali & Ors Vs Biswamber Das2BLT (HCD)-1

Section-42

Suit for declaration — In a suit for declaration of title mere possession of the property is not sufficient unless the plaintiff can produce a document of title showing his acquisition of right, title and interest in the suit property.

M. B. Ahmed Vs. D. C. Saha & Ors. 4BLT (AD)-150

Section-42

The plaintiff-respondents filed a suit for declaration of their title to the disputed tank stating, inter alia that during S. A. operation the disputed tank having wrongly been recorded in the name of defendant No. 1 —Trial court without recording any evidence, dismissed the suit holding that the plaintiff having not sought for the consequential relief like confirmation of possession, the suit being hit by the proviso to section 42 of the Specific Relief Act. It was not maintainable. On appeal, the learned District Judge dismissed the appeal and affirmed the judgment and decree of the trial court— High Court Division allowed the appeal — Held The High Court Division upon assigning proper reasons rightly set aside the judgment and decree of the courts below and sent back the case on remand to the trial court for its expeditious disposal in accordance with law.

Kalipada Sarker Vs. Goribullah Mondal & Ors. 4BLT (AD)-167

Section-42

Suit for declaration of title — R. S. Khatian is not a document of title — In 33 DLR-126, decision was given in the context of a suit for partition. It has no relevance in the context of a suit for declaration of title.

Syed Ahmed & Ors Vs. Raja Miah & Ors. 4BLT (AD)-224

Section-42

Suit is not maintainable — The plaintiff-opposite party No.1 filed the suit for declaration, challenging the validity and legality of the resolution dated 1.7.90 passed in the Governing Body in their meeting held on the aforesaid date as well of the memo dated 1.7.90 communicated to him under the signature of the President of the Governing Body — Held : On a perusal of the impugned judgment as well as the judgment of the trial court we notice that both the courts below surely missed the point that the instant suit suffers from gross illegality in as much as it was hit by the proviso to section 42 of the Specific Relief Act — relied on C.P.S. L.A. No. 225 of 1983.

Dhunat Degree College Vs. M. A. Samad & Ors. 5BLT (HCD)-110

Section-42

Section 42 contemplates that any person is entitled to any legal character or to any right to any property and the other person denies or interested in denying his title to such character or right. If by an instrument a person’s right and title is clouded and threatened, he may seek a declaration under this section that by the instrument his right and title has not been affected. More so, if a prayer is couched to the terms that a person acquired no right and interest over any property, it is also covered by section 42.

Zamiruddin Ahmed Vs. Md, Ziaul Haq & Ors. 6BLT (HCD)-5

Section-42

In the present case, a declaration is sufficient as the, document is partly admitted and partly denied. Section 42 still can come to rescue the plain tiff if to get the proper relief.

Zainal Abedin Vs. Maksuda Khatoon & Anr. 6BLT (HCD)-44

Section-42

Suit for declaration—possession is not material—The settlement of the suit land made earlier in favour of the plaintiff—In the present suit, the plaintiffs admittedly have not got the deed of lease, their title therefore, is also wanting. In the suit of this nature for declaration of title no relief can be given.

Abdul Kader& Ors Vs. Abdullah & Ors. 6BLT (HCD)-112

Section-42

Suit for declaration of title and recovery of possession—not maintainable.

There is no averment in the plaint of plaintiffs dispossession from the suit land within twelve years of bringing the suit which is for recovery of khas possession; notwithstanding this, both the trial court and the lower appellate court concurrently found that the plaintiffs had never been in possession of the suit land. In such circumstances the suit is not maintainable.

Amanatullah & Ors Vs. Ali Mohammad Bhuiyan & Anr. 6BLT (AD)-1

Section-42

The suit property is a requisitioned and acquired property and the defendants possession therein will not deprive the plaintiff from maintaining his title and to recover his possession.

Ambiya Khatoon & Ors. Vs. Md. Zahirul Islam & Ors. 7BLT (AD)-213

Section-42

Not maintainable—When the plaintiff himself is a party to some kabalas a purely declaratory suit is not maintainable. The plaintiff must seek further consequential relief by way of cancellation of the deeds.

Md. Nazir Hossain Khan & Anr. Vs. Shahida Begum & Ors. 7BLT (AD)-7

Section-42

In the instant suit, even in pursuance of the contracts for sale the plaintiffs’ possession, so far as the real owners are concerned, has been a permissive possession. It is evident from the Trial Court’s judgment that the plaintiffs have stated in the plaint that their vendors refused on 29.7.88 to execute and register the kabalas for the suit land and on that date the cause of action for the suit arose. Thus, at best from 29.7.88 the plaintiffs’ possession in the suit land may be said to be adverse against the real owners. But such possession does not entitle the plaintiffs to get a decree of declaration of title on adverse possession.

Sheik Kamal Boksh & Anr. Vs. Seraj Boksh & Ors. 7BLT (AD)-328

Section-42

Suit for declaration—the plaintiffs are entitled to get appointment on the basis of offer letter of appointment is maintainable.

Bangladesh Railway & Ors Vs. Din Mohammad & Anr. 7BLT (AD)-361

Section-42

Suit for declaration of title and recovery of possession—It is a settled law that a suit by a co-sharer against another for recovery of possession is maintainable if separate possession by amicable arrangement is proved.

Md. Shaher Ali & Anr Vs. Md. Abdur Rahman & Anr. 7BLT (AD)-370

Section-42

A declaration with a regard to the contractual or financial obligation involved or transacted between the parties cannot come within the ambit of Section 42 of the Specific Relief Act.

Shafi A. Chowdhury Vs. Pubali Bank Ltd. & Ors. 10 BLT (HCD)-347

Section-42

Although Section-42 of the Specific Relief Act is not exhaustive and declarations independent of that provision is even permissible but a suit for declaration, however, would not lie when the plaintiff is neither entitled to any legal character or status nor clothed with any right.

Shafi A. Chowdhury Vs. Pubali Bank Ltd. & Ors. 10 BLT (HCD)-347

Section -42

The right title and interest of the plaintiffs in respect of 62 acres of land of C.S. Plot No. 44 has been extinguished due to the adverse possession of the defendant No. 1 and his predecessor in interest and since the plaintiffs had no right title and interest in respect of .62 acres of land at the time of filing of Title Suit No. 13 of 1994, the prayer as made out in the plaint of the aforesaid suit to the effect that the sale deed No. 4512 and 4513 are illegal, fraudulent and collusive and that the plaintiff are not bound by the same, is not maintainable under Section 42 of the Specific Relief Act.

Md. Shamsuzzaman Vs. Abdul Gani & Ors. 10 BLT (HCD)-339

 

 

Section-42

Without any prayer for consequential relief

Maintainability plaintiff instituted the suit for a decree of declaration that letter of resignation and the acceptance thereof by the decision is illegal, void and of no legal effect- Held: We do not think that the suit will be barred by the proviso to section 42 of the Specific Relief Act,

Shahabuddin Akand & Anr. Vs. Ajit Kumer Shah & Ors. 10 BLT (HCD)-440

Section-42

A discretionary relief

Section 42 does not postulate all types of declarations but only a declaration that the plaintiff is entitled to legal Character or to any right as to any property and it warrants this kind of relief only under certain special circumstances. Relief enshrined under Section-42 of the Specific Relief Act is a discretionary relief and the said discretion is to be exercised on sound judicial principles

Govt. of Bangladesh Vs. A.S. M. Ferojuddin Bhuiyan 9BLT (HCD)-149

Section-42

Further relief

Under the proviso the section 42 of the Specific Relief Act. No Court shall make any declaration of title where the plaintiff is able to seek “further relief’ than mere declaration but omits to do so. It has now been settled by long line of decisions interpreting the phrase further relief that the “further relief’ referred to in the proviso to section 42 of the Specific Relief Act must be a relief flowing directly and a relief necessarily from the declaration sought and a relief appropriate to and necessarily consequent on, the right or title asserted. Sometime, it is called consequential relief and is said to be a consequential only when the relief of declaration is essential to the grant of that relief. No relief is consequential if it cannot be granted without declaration.

Abdus Sukur & Ors. Vs. Bhasani Mondal & Ans. 9BLT (HCD)-273

Section-42

A suit for declaration that the order of the removal of the plaintiff, a bank officer, from service, is maintainable without any further relief—relied on 45 DLR (HCD)-375

Md. Abu Taher Vs. Pubali Bank Ltd. & Ors. 9 BLT (HCD)-299

Section-42

The plaintiff has filed the suit for declaration of their title on assertion that the suit is in their possession and the recording in C.S. R.S. and S.A. are wrong. Section 42 of the Specific Relief Act provides that a suit for mere declaration of any legal character or any right to property is maintainable and in view of the evidence of possession in favour of the plaintiff, the plaintiff need not ask for any further relief and the object of the proviso is only to avoid multiplicity of the suit where further relief can be sought for at the time of the institution of the suit. Considering the facts and circumstances of the present suit we hold that the present suit for mere declaration is maintainable.

Nurul Haque & Anr. Vs. Lutfur Rahman & Ors. 10BLT (AD)-173

Section —42

Whether the plaintiff is required to avoid by seeking declaration against the decrees in the rent suits wherein he was party to have the relief sought in the instant suit for mere declaration of title.

The plaintiff cannot have the relief sought in the suit, i.e. mere declaration of title, in the absence of seeking declaration either that the rent decrees were not binding on him being collusive or that void in-abinitio.

Dudu Mia & Ors. Vs. Ekram Mia Chowdhury & Ors. 10BLT(AD)-163

 

 

Section-42

Not maintainable— plaintiff-respondent No. 1 also dismissed from the defendant-Bank’s Service on 25.05.1987 — when the order of dismissal from service was Passed, the relationship between the Bank employer and the plaintiff-employee also that of a master and servant the suit is not maintainable on the ground that a declaratory decree will not be enough and that a decree for a mandatory injunction necessary as a consequential relief is barred under the law.

Rupali Bank Limited Vs. Haji Md. Arab Ali & Ors. 11BLT (AD)-61

Section-42

Since plaintiffs vendor Amdeka Khatun acquired title by exchange and plaintiff having had established his title so acquired from Amdeka Khatun and also having had established that defendant No.1 was his tenant and he stopped payment of rent from 1st of January, 1983 and the description of the land given in the schedule being quite clear to identify the land in suit, as such the decree that was passed by the trial Court was quite sustainable.

Md. Ishaque Mia Vs. Alias Alam Mia & Ors. 11 BLT (AD)-168

Section -42

Since plaintiffs failed to prove his possession on the basis of auction purchase and that no definite date of dispossession could be proved in the suit land in spite of the fact that the defendant only claimed .35 decimals of the suit land, the plaintiff is not entitled to any decree of the suit for declaration of title and recovery of possession in respect of the alleged admitted portion of the suit land in possession of the plaintiff.

Diljan Bibi Vs. Gheta Bewa & Ors. 11 BLT (AD)-143

Section-42

An order of dismissal passed against the Government servant is illegal, inoperative and void without a prayer for consequential relief is maintainable and section 42 of the Specific Relief Act does not bar such a suit.

Md. Tomser Ali Sarder Vs. Md. Nazrul Islam & Ors. 11 BLT (HCD)-35

Section-42

Not maintainable—In this case, the plaintiff merely submitted his tenders but those tenders even with 25% deposit, of own quoted price did not clothe him with any right to property, as such, suit for declaration was not maintainable. Since, there were no agreements, his suit for specific performance of contract had also no basis.

Shaikh Jahangir Hossain Vs. Government of Bangladesh & Ors. 11 BLT (HCD)-142

Section-42

Possession —In the facts and circumstances of the case and the evidence on record and the particular the fact that the plaintiff are in possession of the suit land since 1963 by virtue of the registered power of Attorney, I am of the view that the plaintiff have acquired a right to the ‘A’ scheduled property at least to protect their possession to maintain a suit within the meaning of Section 42 the Specific Relief Act and their suit is maintainable.

Shishir Kanti Pal & Ors. Vs. Nur Muhammad & Ors. 11 BLT (HCD)-146

Section-42

After the lease was granted which the trial court correctly found validly, the plaintiffs have got no right under Section 42 of the Specific Relief Act to challenge such lease just on the ground that they hold land contiguous to the land leased out and such a suit definitely hits the provision of aforesaid section 42 of the Specific Relief Act.

Abdul Khaleque Vs. Akram Hossain. 11 BLT (HCD)-470

 

 

Section-42

The plaintiff filed the suit for setting aside the decree obtained by the defendant in title suit for specific performance of contract —Held: Simple suit for setting arised the decree without filing a regular suit for cancellation of registered deed obtained through court is not maintable.

Abdur Rashid & Ors. Vs. Abdul Bashir & Ors 8 BLT (AD)-49

Sectiou-42

Ownership of the property—payment of consideration money

Members of the Muslim Family-In the absence of legal evidence that the consideration money was paid out of the fund of the joint family, joint-ownership could not be claimed. The High Court Division rightly observed that if the consideration money flowed from the source of income of the joint family the case might have been otherwise but since the defendant- petitioners failed to prove that the consideration money was paid from the common fund of the joint family their claim does not sustain.

Moklesur Rahman & Ors. Vs. Zulfiker Ali & Ors. 12 BLT (AD)105

Section -42

Plaintiff is a Private Limited Company —the Suit for simple declaration that the property in schedule belonged to and its part of the assets of the company and a further declaration that the petitioner is entitled to transfer of the property in schedule by virtue of the agreement dated 13.9.76.

The suit property having been vested upon dis-investment as abandoned property and not having been included in the profile and the schedule to the agreement for sale in respect of the property of the purchaser, no legal right has been accrued to the plaintiff-petitioner in respect of the same for any declaration or any Permanent injunction as sought for in the  instant suit.

Paper Converting & Packaging Ltd. Vs. Government of Bangladesh & Ors 13 BLT (AD)214

Section-42

Adverse Possession

A permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for a long time does not result in converting permissive possession into adverse possession.

Had Ashraful Alam Vs Md. Moniruddin & Ors 13 BLT (HCD)86

Section-42

Misconception of law

The plaintiff having proved acquired good title in the suit property by way of gift has got every right to protect such property. The view of the learned Subordinate Judge that the suit for declaration of title on the basis of oral gift is barred by section 42 of the Specific Relief Act is therefore wholly based on misconception of law.

Mrs. Hasina Begum Vs Deputy Commissioner & Ors 13 BLT (HCD)132

Section —42

Reliefs as sought by plaintiff —mere declaration of title. Case projected by plaintiff in plaint was that out of 26 and 14 kathas of land, 13 kathas and 7 chattaks of land was outside acquired land of Rajuk and 13 kathas and 7 chattaks of land was acquired land. Out of 13 kathas and 7 chattaks of land, 9 kathas more or less had been used for effecting development of road and 4 kathas and 7 chattaks of land more or less had not been at all used and said 4 kathas and 7 chattaks of land had been and has been in possession of plaintiff. Rajuk created plot no.2 in respect of 4 kathas of land and created plot no. 3 in respect of 7 chattaks of land and allotted 4 kathas of land in favour of Md. Omar Faruk and Abdul Masrur and allotted 7 chattaks of land in favour of Md. Iqbal. Plaintiff s assertion that 13 kathas and 7 chattaks of land including unused 4 kathas and 7 chattacks of land had been acquired for the purpose detailed in Rule 6 of Martial Regulation No.V1II. of 1986 and the purposes were for construction of roads and highways and for development for commercial and public recreational purposes and for such other public purposes as the said Trust might in consultation with the Government decide. Allotment of 4 kathas and 7 chattaks of land in favour of allottees Md. Omar Faruk and two others were absolutely illegal, void and contrary to Martial Regulation No.VIII of 1986. 4 kathas and 7 chattaks of land having been unused land, plaintiff in the, capacity of original owner of said land was entitled to have property released and by allotments in favour of Md. Omar Faruk and two others right of plaintiff to the said 4 kathas and 7 chattaks of land had been infringed and plaintiff, thus, got legal character and legal status to file and maintain suit. It, thus, cannot be said that suit is barred under provision of section 42 of Specific Relief Act.

RAJUK & Ors Vs Habibur Rahman & Ors 13 BLT (HCD)506

Section -42

A decree for declaration of title could not be given unless the plaintiff is found to be in possession or in a suit for declaration of title and partition that the plaintiff is entitled to a declaration of title if he is in joint possession with his co-sharers. But such decree would be barred if the plaintiff is not found to be in possession because of the decree for permanent injunction in Other Suit No.26 of 1983. Thus unless the decree for permanent injunction in Other Suit No.26 of 1983 is set aside, no suit for declaration of title is maintainable under the provision of section 42 of the Specific Relief Act.

Md. Shamsul Haque Vs. Md. Salimullah & Ors 14BLT(AD)07

Section – 42

When it is the admitted case of the plaintiff that 30 decimals of land out of 2.30 acres of land of Suit Plot No.533 is within the acquired land of the Government as per gazette notification dated 20.02.1950, the plaintiff’s suit for entire 2.30 acres of Plot No.533 on the face of it was not maintainable.

Bangladesh Vs. Shamsunnessa Bibi & Ors. 14 BLT (AD)71

Section-42

Suit for declaration of title and recovery of possession without a Prayer for Partition.

The suit land was already recorded in the names of original plaintiff Obaidul Islam and his wife Gulshan Begum during survey under the State Acquisition and Tenancy Act, 1950 in plot no. 298/302 and 298/303 appertaining to SA Khatian No.196 and 197. Such record of rights published sometime in 1964. On the basis of such record of rights the plaintiff possessed the suit land exclusively on payment of rents on proper receipt exhibit 8 series. Similarly, under the RS survey the suit land was again recorded in the names of Obaidul Islam and his wife Gulshan Begum in RS Plot No. 1207, 1208 and 1209 appertaining to RS Khatian No.202 and 225 and RS record of rights was published in 1980. In view of such exclusive possession of their specific land under distinct and separate holdings for more than 12 years, the plaintiffs no more need partition of their land.

M/S. N.F.M. Universeum Estate Ltd. Vs Gulshan Begum & Ors. 14 BLT (HCD)225

Section – 42

The property was listed as enemy property and Upendra himself filed a suit in 1978 against that listing of the property as enemy property. That suit was dismissed and the judgment passed in that suit is binding on the plaintiff who claimed to have purchased the suit land from Upendra. Moreover, we have found that at the instance of the plaintiff himself Upendra filed that suit. So, plaintiff was fully aware that property was enemy property and as such he did not acquire any title on the basis of the sale deed dated25.3.1985. The courts below on the above ground found that the plaintiff acquired no title. The courts below also found that Title Suit No.123 of 1990 was barred by limitation held The High Court Division held that the plaintiff acquired title by adverse possession. This finding of the High Court Division is without any basis. Moreover, this relief given by the High Court Division appears to be a gratuitous relief because the plaintiff himself did not claim title by adverse possession.

Dulal Chandra Das & Ors. Vs. Ratan Chandra Sarker & Ors 14 BLT (AD)166

Section —42

Suit for recovery of Khas Possession

Substantive relief — Since the property and assets of the plaintiff were never an abandoned property and have never been vested in the Government under the law, there was no valid or lawful transfer of the same of the appellant and the Govt. including its subsequently transferee is legally and duty bound to restore possession to the plaintiff.

Sena Kalayan Sangstha Vs. Mr. Nagar Mohiuddin & Ors 14 BLT (AD)230

Section-42

Knowledge of wrong Record of Right can be starting point of limitation and a litigant public even if aware of wrong record of a Record of Right can wait and wait till his right is invaded by other side and his suit will be well within time if he institutes suit within six years from date when his right on suit property is denied and invaded by other party.

Bangladesh Bank Vs. Saiyed Shohidul Haque & Ors 15BLT(HCD)239

Section—42

The defendants petitioners had already taken delivery of possession through court on 02.10.1984. The plaintiffs opposite parties filed Title Suit No.04 of 1992 on 21.01.1992 when they had no possession in the suit land. Thus the suit filed by the plaintiffs for declaration without the prayer for khas possession is not maintainable in its present form.

Abdul Aziz & Ors Vs. Kabir Ahmed Patwary & Ors 15 BLT (HCD)328

Section 42

The plaintiff claims that- he purchased the suit land from Nitya Nanda Munshi and Noni Gopal Munshi in the benami of his close friend, Ahmed Reza who is defendant No. I and he has been possessing the same mutating his name and paying rent to the government. — A benami transaction has been described briefly as one in which the real owner of the property allows it to appear in the name of an ostensible owner under a sort of secret trust. This system of acquiring property is well known in our country on various reasons till 26 January, 1984 when the Land Reforms Ordinance was promulgated as the benami transaction gave rise to countless litigations which caste evil effect on the society. On coming into force of this on 26 January, 1984 now no one is allowed to set upon his claim on the benami transaction. Since this ordinance has no retrospective effect and as the suit was filed on 03.07.1975 long before the pronouncement of the said ordinance, so the suit is quite maintainable.

Bangladesh Vs. Shamshur Rahman & Ors 15 BLT (HCD)23

 

 

Section-42

Decree for declaration without any consequential relief

Plaintiff served as Branch Manager of the Rupali Bank Ltd. who in a suit seeking declaration that the order suspending him from service and the show cause notice dated 14.6.99 proposing his dismissal from service is illegal, void and not binding upon him —trial court as well as appellate court below decreed the suit —The defendant Bank then move the High Court Division and the High Court Division held that admittedly on and from 6.4.1984 the defendant bank, being denationalised, was converted into a private bank incorporated under the Companies Act 1994 and as such the relationship between the plaintiff petitioner and the defendant bank became that of master and servant from that date and therefore the petitioner is not entitled to get a decree for declaration without consequential relief; in the instant case there is no prayer for mandatory injunction for consequential relief; even if there is a prayer for mandatory injunction but that too cannot be granted in view of legal bar under clause (e) of section 56 of the Specific Relief Act which provides that an order of mandatory injunction cannot be granted to prevent the breach of a contract the performance of which could not be specifically enforced; the breach of contract for personal service cannot be restrained by court ordering an employer to retain the employee in the service as it is the prerogative right of the employer to discharge his employee and the Court cannot compel a person against his will to employ any person and the employer bank is liable for damage and compensation in terms of Service Rules and Regulations; the suit is not maintainable as the plaintiff challenged the order of suspension and the final show cause notice but did not challenge the order of dismissal in which the impugned order of suspension and show cause merged and with the order of dismissal the orders of suspension and final show cause became infructuous and in the instant case this issues, which cuts the case at its root, have not been considered at all by the appellate Court below —Held: we are of the view that the High Court Division on proper consideration of the evidence and the materials on record arrived at the correct decision. The learned counsel could not point out any illegality or infirmity in the decision of the High Court Division so as to call for any interference.

Md. Jahir Uddin Vs. Rupali Bank Ltd. & Ors 16BLT(AD)76

Section —42

Whether the Public Debottar Property completely ceased

High Court Division held that it is clear from the evidence of D.W. 1 and D.W.2 and also from the evidence from D.W.4 that the plaintiff has been in possession of the suit land measuring 2½ kathas of “Mondirghar”. The High Court Division upon correct assessment of the materials on record held that the plaintiff has been able to prove his continuous, uninterrupted and hostile possession in the suit land for over 12 year and accordingly held that good and infeasible title by adverse possession has accrued in favour of the plaintiff —Held: we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision.

Sri Sri Hari Thakur Deb Bigraha & Ors Vs. Md.Abdul Hannan & Ors 16 BLT (AD)223

Section-42 and The Bengal Tenancy Act, 1885 Section-266

Whether suit for declaration of title convert to suit for redemption of mortgage

 

A suit for declaration of title and a suit for redemption of mortgage are by nature and procedure wise different and one cannot be substituted for the other. Pleadings in the two Suits have to be ‘different. Ordinarily an amendment of the plaint seeking to convert a suit for declaration of title with prayer for confirmation! recovery of possession into a suit for redemption of mortgage would never be permitted because in that case the nature and character of the suit will be entirely changed.

Mohd. Eusoof & Ors Vs. Haji Golam Bad & Ors. 6BLT (AD)-89

Section-42 read with Transfer of Property Act, 1882 Section-54

By entering into agreement on 07.03.96 with the defendants No.1 to 9 the plaintiff acquired no right nor any lawful interest in the suit land. Section 54 of the Transfer of Property Act has clearly provided that contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not of itself clear any interest in or change on such property. When the plaintiff did not acquire any right in the suit land nor did he acquire any legal character under any law by such transaction, he is not a person within the meaning of Section 42 of the Specific Relief Act to be entitled to seek for a declaration against the decree dated 25.11.1997.

Md. Azizul Islam & Anr. Vs. Sheik Shamsur Rahman & Ors. 10 BLT (HCD)-274

Section-42 read with Code of Civil Procedure, 1908 Order-1 Rule-10

Addition of Parties —changing the nature and character of the suit.

A stranger to the contract setting up claim of title in the suit property is not a necessary party in a suit for specific performance of a contact. In such a suit the Court is only to see whether there was a valid contract between the contending parties and if the contract is legally enforceable. If a third party is allowed to be added as a defendant in the suit to plead his title, this will convert a simple suit for specific performance of a contract into a regular title suit, invariable changing the nature and character of the suit.

Shaubhada Ranjan Dutta Vs. Md. Yusuf& Ors. 9BLT (HCD)-247

Sections 42 and 55 read with Recognized Non-Government Secondary School Regulations, 1977

Regulations- 18(1)(b)

Appointment of teachers

When the managing committee is properly formed i.e. it does not suffer from coram non judice, and when its decision is not influenced by any bias or malice and do not contravene any rules having the force of law, and in the absence of rules or law, do not violate the principles of natural justice or established fundamental procedure, such decision of a managing committee of a school, or an educational institution cannot be impeached or set aside by a Court of Law.

Md. Shahjahan Ali & Ors. Vs Paritosh Chandra Roy & Ors. 9BLT (HCD)-374

Section-42 read with Emergency Requisition of Property Act, 1948 Section- 14A

The property in suit was acquired under the provision of the Act and to that respect gazette notification has been published making the acquisition final and vesting the property in suit in the Government. As per provision of law on the publication of the gazette notification the property acquired vests in the Government and consequent thereupon Government becomes the owner of the property. The person whose property is acquired under the Act and consequent thereupon vests in the Government, he is not entitled to claim any interest in the land so acquired. In that view of the matter there was no scope for the plaintiffs, who have no interest of any kind in the land in suit, to seek for a declaration that they are entitled to get the property released.

Director of Housing and Settlement, Dhaka Vs. Abdul Majid Howlader and Ors 14BLT (AD)36

Section—42 read with Transfer of Property Act, Section—42

Defendants-Petitioners were the Original owners in possession of the Suit Property who transferred the same to Bashirullah Bepari by a Kabala dated 22.12.1960 on condition of repayment of consideration money within 6 years ensured by a Separate deed of agreement for re-conveyance made on the same date. But that Bashirullah Bepari transferred the sute property to Ledu Miah before expiry of the Stipulated Period of 6 years and Ledu Miah sold the Suit land along with other land to the Plaintiffs Opposite Parties by 4 Kabalas —Defendant-Petitioners obtained an Order of redemption of the suit land dated 25.9.1984 in Miscellaneous Case. As against the said order Ledu Miah preferred an appeal which was dismissed on 24.6.1986 and that the defendant No.1 Additional Divisional Commissioner also had affirmed the order of redemption by his order passed on 24.11.1991 in Miscellaneous Appeal No.104 of 1988 —The Plaintiffs came to know about all the developments relating to the suit land on 23.12.1991 and hence the suit for declaration that the order of the defendant No.1 dated 24.11.1991 is illegal, void, without jurisdiction, in operative and not binding upon the plaintiffs-Held: Scanning the evidence on record, it appears that the plaintiffs opposite parties as penditlite transferees cannot challenge the impugned judgment dated 24.11.1991 of the Additional Divisional Commissioner when their vendor invoked the jurisdiction and obtained the order. In such case their vendor could prefer appeal before the Board of land Administration or could file case before the court only on grounds of fraud and collusion but their vendors did take neither of the above courses. Thus his successors, who have no title and possession in the suit land, cannot challenge the impugned order dated 24.11.1991. Their suit is also hit by section 42 of the Specific Relief Act. The suit of the plaintiffs is also hit by section 52 of the Transfer of Property Act as they purchased the alleged suit land during the pendency of the proceedings and the decisions upon the predecessors of the plaintiffs are binding upon the plaintiff.

Abdul Aziz & Ors Vs. Kabir Ahmed Patwary & Ors 15 BLT (HCD)328

Section —42

read with Recognized Non-Governmental Intermediate College Teacher’s (Board of Intermediate and Secondary Education, Jessore) 1979 Section-11 and 14(1)

No Cause of action in filing the Suit.

From the resolution of the governing body (exhibit-Kha) and the evidence of PW1 it appears that the plaintiff at least admitted her(1) absence from duty without permission from the authority (2)In subordination to the authority (3)unpunctual to duty assigned to her —Field; the decision in question was taken under section 14(1 )of the regulation for willful Commission of professional mis-conduct committed by the plaintiff and deliberate insubordination committed by her. Although no enquiry was pending against the plaintiff and no proceeding was drawn but the same shall not nullify the decision in view of section 14(2)of the regulation .The decision having had taken under section 14(1) of the regulation it was incumbent upon the plaintiff to submit a show cause within 7 days of her receipt of the decision by her and thereafter the question would have arisen for constitution of any committee as required by see 14(2) of the regulation. But the plaintiff without waiting for a moment had instituted the suit which she was not entitled to.

Razia Khanam Vs. Md. Md. Shamsuzzoha Khan & Ors 15 BLT (HCD)355

Section-53

Section 53 of the Specific Relief Act comes up to mix-up the limitation of the specific performance of contract and time limit becomes the essence of the contract and the responsibility is cast upon the plaintiffs in carrying out the contract in time —the plaintiffs suit after 8 years of death of Gouranga Chandra, on the basis of an alleged oral agreement is definitely barred by limitation.

Biplob Chandra Das & Anr. Vs. Biren Chandra Das & Ors. 8BLT (HCD)-370

Section-54

Permanent Injunction—the learned Munsif on consideration of the evidence on record found that the plaintiff was in exclusive possession of the disputed land and neither the defendants nor their vendors had any right to or possession in any portion thereof by virtue of their alleged purchase. The trial court further discarded the evidence of the defendants with proper reasonings. Accordingly he decreed the suit—Lower appellate court reversed the decision of the trial court.

Held : The High Court Division noticed that the lower appellate court while reversing the decision of the trial court did not apply its judicial mind to a consideration of the whole of the evidence in the case. The lower appellate court did neither consider all the material evidence taken into consideration by the trial court in their true perspective nor did it advert to all its reasoning. In the circumstances the High Court Division set aside the judgment of the lower appellate court and restored that of the trial court. We do not find any good ground to differ from the view taken in the said judgment of the High Court Division.

Md. Shamsuzzaman Khan & Ors. Vs Han Mondal & Ors. 4BLT (AD)-173

Section – 54

The petitioner —plaintiff instituted a suit for permanent injunction in respect of the suit plots No.2 and 206 — learned Trial Court was pleased to decree the suit in respect of the suit plot No. 206 only — learned Court of Appeal upheld the judgment of the learned trial court— Held: The Court of Appeal below found that almost all the witnesses have stated that both the plaintiffs and defendants are on possession in the suit plots and I also find that plaintiff has failed to prove his exclusive and specific possession in lands he claims and appellate court specifically found that in Dag No. 2 defendant has possession — I feel that the concurrent findings of fact arrived at by the trial court and the appellate court need no interference.

M. Hasmat Ali Vs. Abed Ati & Ors. 4BLT (HCD)-57

Section —54

The High Court Division as well without considering the evidence as to possession dismissed the suit for permanent injunction. The suit being a suit for permanent injunction in which the question of title may be gone into incidentally but decision of title in a suit for permanent injunction ought not to have been the guiding principle. The Court cannot disentitle the plaintiff of a decree for permanent injunction if he can prove possession and in that view the plaintiff could not be evicted with force if continues to be in possession unless in due process of law and could exercise his right of possession restraining everybody including the real owners. In a suit for permanent injunction the Court need not enter into disputed title except to the extent that it would help the Court in finding which of the parties have prima facie title and exclusive possession.

Jobayer Hossain & anr. Vs. Noor Hafez & Ors. 11 BLT (AD)-124

Section —54

In a suit for permanent injunction trial court is not required to decide the title of respective parties. It is only to look in to the factum of possession.

Chief Engineer Vs. Shah Hingul Mazar Sharif & Ors 11BLT (AD)-126

Section-54

Seeking a decree for Permanent injunction

We are of the view that High Court Division as well as the appellate Court were quite correct in arriving at the finding that plaintiffs as co-sharers of the land of plot No.2033 and having not established of being in specific possession of any portion of the land of plot No.2033 cannot have a decree for permanent injunction against the other co-sharers when the land of the holding was not partitioned either by metes and bounds or there was amicable partition among the co-sharers.

Abdul Jabbar Bepari &Ors Vs. Md. Abul Hossain & Ors. 12 BLT (AD)203

Section-54

Suit for Permanent injunction

In the present case, the plaintiff respondent has been seeking protection of his possession against its original owner who is Chowdhury Badruddin. In that view of the matter, both the courts having found that the plaintiff respondent was in possession of the suit shop premises, the instant suit for permanent injunction couldn’t be said to be not maintainable against the defendants petitioner inasmuch as the relief has been sought no against the admitted real owner of the suit shop premises.

Abdul Latif Milki Vs. Syed Mamun Murshed 12 BLT (AD)80

Section 54

Order of injunction, in whatever form, is an equitable relief and in order to invoke the same, an aggrieved plaintiff must come bona fide with clean hands with a prima facie case of his loss and injury showing that if an injunction is not granted he/they will be prejudiced and suffer irreparable loss and injury or his right will be throttled. An order of mandatory injunction or mandatory ad interim injunction is an extreme harsh and highly discretionary order passed at the discretion of the Court to restore a situation existing on the date of filing of the suit or occurred after filing of the suit and in breach of any order of the Court. Such order cannot be passed to restore or bring back a situation which was not in existence on the date of filing of the suit or of passing of such an order on fulfilling the above conditions.

Md. Nurul Islam (1), Advocate & Ors Vs. Khatibuddin, Advocate & Ors 12 BLT (HCD)185

Section-54

Property — the matters relating to admission of a girl as student in a school as claimed in the suit is neither property nor proprietary right — The kind of right i.e. to have girl students exclusively admitted in the School as claimed by the School and accepted by the High Court Division and thereupon made the same basis of the judgment was erroneous as the right claimed by the School is by no standard is ‘property’ and thus right claimed by the School was not ‘right to, or enjoyment of, property’ and consequent thereupon the School was neither entitled to temporary injunction, nor to a decree of permanent injunction.

Md. Shahid Hossain Khan Vs. Abdul Bashed Lashkar & Ors 15 BLT (AD)344

Section-54

In a suit for Permanent Injunction factum of possession in fundamental and plaintiff can be graced with a decree of permanent injunction in respect of the suit property if he can prove exclusive possession over suit property. It has earlier stated that possession by way of construction of shops and kutcha houses, three and six, in number respectively, no matter whether possession of Defendants were lawful or not but it became evident that Plaintiff got no possession in some portion of suit property. It is nowhere in plaint that Plaintiff had been threatened with dispossession on a particular portion of suit property and no evidence, as, came forth from the mouth of PW 1 and PW2 on which portion of suit property Plaintiff was threatened with dispossession. It cannot be, thus, said that Plaintiff Bank succeeded in proving its exclusive possession on suit property to be graced with a decree of Permanent Injunction restraining Defendants — Respondents from entering into suit property.

Bangladesh Bank Vs. Saiyed Shohidul Haque & Ors 15BLT(HCD)239

Section-54

Permanent Injunction —ejmali properties — defect of parties.

The trial court having considered the C.S. Parcha No.160, Ext. l, Petty Parcha No.20, Ext.2, R.S. Khatian No. 192 together with the rent receipts, relied on the above case to consider as to the circumstances under which a decree of permanent injunction should be passed and finding the exclusive possession of the plaintiff in the suit land held that the plaintiff was entitled to a decree for permanent injunction as for the purpose of decree for permanent injunction possession is the cardinal factor. The lower appellate after due, discussion, dismissed the appeal affirming the above findings. The High Court Division considering the above position and also on relying on the case of Rafizuddin vs. Molla Barman, reported in 43 BLD(AD) 215 where it has been held that, “In a simple suit for permanent injunction with regard to disputed land the relief is available to a person who is in possession. The court may require incidentally into the respective claims of the parties for determining whether the plaintiffs is in possession of a dispute property and entitled to specific relief of permanent injunction” and also relying on the case of Pasharuddin Mir vs. Ismail Mir and others (Supra) where it was held that “in a suit for permanent injunction there is no question of defect of parties. Only those who threaten the plaintiff with dispossession are necessary parties” discharged the Rule — Held: It thus appears that the High Court Division on applying correct principles of law arrived at a correct finding.

Md. Nazrul Islam & Ors Vs. Md. Renu Mia 16 BLT (AD)97

Section 55 and Clause (e) of Section-56

Bar to the decree for mandatory injunction— an injunction cannot be granted to prevent the breach of a contract, the performance of which would not be specifically enforced. Thus courts ordering the employer to retain the employee in his service do not restrain breaches of contract for personal service. Speaking generally, it is the right of the employer to discharge his employee, and that of the employee to quit his employer’s service, subject to the right to pay damages for breach of the contract, Court cannot compel a person, against his will, to employ or serve another, notwithstanding the contract of service. A mandatory injunction cannot be granted for such purposes.

Rupali Bank Limited Vs. Haji Md. Arab Ali & Ors. 11 BLT (AD)-61

General observation on, of teachers

In case of appointment, removal, promotion etc and discipline of the service of teachers there must be a uniform law applicable to all schools in the country. This important aspect of the service of the teachers cannot be left, without a law, to the managing committee of a school. The fate of hundreds and thousands of teachers of the country cannot be left to be decided by circulars and directions time to time to be issued by the Boards, such regulations rules and circulars in the absence of statutory safeguard when challenged in Court of law do not come to any help, Against the decision the managing committee in the matter of appointment removal, promotion and salaries, teachers are pouring in the courts with cases in hundreds and thousands. In the absence of any uniform law, the Courts find them in the legal quagmire they often fail to find the way to come out doing justice in the case, At the end of protracted litigation teachers go back home totally broken and ruined. It is high time to address this precarious situation.

Md. Shahjahan Ali & Ors. Vs Paritosh Chandra Roy & Ors. 9BLT (HCD)-374.

541

STAMP ACT, 1899

Citation: 3BLD(AD)227, 11BDL(AD)66, 7BLD(HCD)263

Case Year: 1899

Subject: STAMP

Delivery Date: 1970-01-01

 

 

STAMP ACT, 1899 (II OF 1899)

 

Article — 40(b)

Stamp duty—Mortgage was intended by the respondent in favour of the bank notwithstanding their earlier hypothecation and pledge of goods by execution of promissory notes etc.—There is no principal or primary security which was duly stamped—Hypothecation and pledge is chargeable to stamp duty under article 6 and is not a mortgage—The respondent has given mortgage for the first time though the respondent has taken previously a cash credit facility by executing promissory note—The present instrument cannot be a collateral security because it is mortgage deed and it does not relate to any previous mortgage given to the bank—If the present mortgage was intended to be a second mortgage with the Shilpa Rin Sangstha then it could be argued that the present document is merely a collateral securing by way of further assurance because the principal security is already stamped but that is not the case—The object of the instrument was to give the bank Some rights by way of security—This is not a deed of hypothecation and therefore it earns under Article 40(b)—This is the first mortgage with the bank—The stamp Act (II of 1899) Art. 40(b).

 

Per B.H. Chowdhury (Munim, C.J, and Masud, .j. concurring)

Mutual Property lnsurance Co. Ltd. V. Inland Revenue Commissioner 1926. All England Report Page 493; Iflland Revenue Commissioner V. Hanny Ansbacher & Co. (1962)YAllE.R. 843 ref.

Secretary to the Commission of salt etc. Madras V. Mrs. Orr 38 Mad. 646; Board of Revenue V.Sorrarazu, AIR 1976 Mad. 1038 (FB);

The demand promissory note and deed of hypothecation together constitute a mortgage as contemplated under the Stamp Act. The bank as per terms of the mortgage deed can fall upon the mortgaged property only when the primary security, namely the demand promissory note and deed of hypothecation fall short to satisfy the outstanding demand of the bank. In the face of clear recital in the deed in question I find it difficult to accept the contention of the appellant that the mortgage in this case falls under the category of primary or principal security. The deed as drawn up clearly falls in the category of collateral anxiliary in as much as some immovable properties are being offered as collateral or auxiliary or additional security for the vcash credit facility and the stamp duty is chargeable under clause (c) of Article 40.

Per R. Islam J (dissenting)

The question involved in this case is whether the mortgage deed in question is a collateral security in relation to the security by way of the Demand Promissory note and the Deed of hypothecation, both the securities being in favour of the same lender and in respect of the same loan. Purpose of a collateral security is necessarily the same as that of a primary security i.e. repayment of loan. If a loan can be taken by executing a demand promissory note or a deed of hypothecation of goods as the only security, there is no reason why such documents cannot constitute a primary security when subsequent additional security is called for hold that the mortgage deed in question is a collateral/auxiliary security and chargeable under clause (c) of Article4O. (Paras 31, 33, & 36) Per S. Ahmed, J (dissenting)

National Bank of Pakistan Vs. Fasihuzzaman. PLD 1964 (Kar)92—relied

Chairman, National Board of Revenue, Bangladesh V. M/ G. M.G. Corporation Ltd, 3BLD(AD)227

 

Sections— 18(I) and 35

Under sub-rule (2) of Rule 12 of the Stamp Rules read with section 18 of the Stamp Act, it is the duty of the proper officer’ as defined in rule 9 of the Stamp Rules to stamp the instruments in the manner as described by Rule 11 of the said Rules. “Proper Officer’ within the meaning of Rule 9 are specified in the Appendix—A to the Rules. (para-32)

 

 

Sections—18(1) and 35

Every instrument chargeable with duty and executed only out of Bangladesh and not being a bill of exchange or promissory note, may be stamped within three months after it has been first received in Bangladesh. It can still be stamped after three months and thereby the penal provision of section 35 will be attracted. Both the breaches will be cured on payment of duty and penalty and validation under section 35. The holder of power of attorney, must pay the prescribed penalty or else the power of attorney will still be inadmissible in evidence.

Distinguished: Au Mohammad Vs. Jagannath Prasad, AIR 1928 Allahabad 666

(Paras-25 & 26)

(Considered and relied on: The Punjab National Bank Ltd. Vs. Messers. Dewan and CO. and other 7 DLR(W.P.)65

Proper Officer”—Under sub-rule(2) of Rule 12 of the Stamp Rules read with section 18 of the Stamp Act, it is the dut of the “Proper Officer’ as defined in Rule 9 of the Stamp Rules to stamp the instrument in the manner as described by Rule II of the said Rules. “Proper Officer” within the meaning of Rule 9 are specified in the Appendix—A to the Rules.

 

Messers Anath Bandhu Guha and Soits Ltd. through its attrorney Md. Sirqjul Huq Vs- Babu Sudhangshu She khar Halder, 11BDL(AD)66

 

Sections —35 & 36

Admission in evidence of promissory note insufficiently stamped—Whether a promissory note insufficiently stamped can be admitted into evidence—Whether such a document once admitted into evidence can be expunged from evidence —Whether an insuffiently stamped document executed with other document bearing more than the stamp due on those and total stamp of all such documents being sufficient can be said to be duly stamped—Once a document is admitted in evidence it is not permissible for the trial Court or the appellate Court or the Court of revision to reject it as evidence on the ground that it has not been duly stamped—Instrument executed in respect of the promise to pay time-barred debt contains sufficient stamp and hence the promissory note though insufficiently stamped being part of the contract with other documents is sufficiently stamped—Stamp Act (II of 1899) Ss. 35 & 36.

M/S. Daulàt Ltd. Vs. Pubali Bank Ltd. 7BLD(HCD)263.

 

542

State Acquisition & Tenancy Act, 1950

Citation: 6 BLC 54, 9 BLC 167, 7 BLC (AD) 32, 7 BLC (AD) 22, 10 BLC 266, 7 BLC 98, 8 BLC (AD) 137, 9 BLC (AD) 130, 8 BLC (AD) 55, 10 BLC (AD) 10, 9 BLC (AD) 109, 10 BLC 603, 6 BLC (AD) 113, 6 BLC 508, 7 BLC 518, 8 BLC (AD) 147, 8 BLC 30, 8 BLC 155, 8 BLC 144, 8 BL

Case Year: 1950

Subject: State Acquisition & Tenancy Act

Delivery Date: 2018-05-28

State Acquisition & Tenancy Act, 1950

 [XXVIII of 1951]

 

Section 10A

 

The Court of appeal has rightly found that the sebait had no authority to lease out the suit premises and the plaintiff had no locus standi to institute the suit and such finding remained unassailed. Both the Courts below exercised their discretion in not granting temporary injunction after applying judicial mind which cannot be interfered with.

 

Girindra Kumar Nath vs Bangladesh 8 BLC 253.

 

Section 19

 

Revisional Settlement record of right is the latest record of right and in the event of conflict between old record-of-right and the latest record of right the latest record-of-right shall prevail.

 

Hasenuddin (Md) vs Bangladesh, and others 6 BLC 54.

 

Section 19

 

There being no delivery of possession by the alleged landlord Syed Asmat Ali and others as has been recorded in the CS Khebat Mohammad Gazi did not acquire any interest in the suit land on the basis of his purchase from Syed Asmat Ali and others so as to confer title on defendants 8 and 9 on the basis of their purchases when the plaintiffs have been able to prove the writ of proclamation and delivery of possession in respect of the suit plot and thus, the recording in the RS and SA Khatian in the name of defendants 8 and 9 has no basis. The plaintiffs' predecessor haying purchased 0.63 acres of land from

 

Mohammad Gazi has acquired title in respect of said quantum of land 9 BLC 167.

 

Sections 20, 43(2) and 44

 

Admittedly, the case property is a hat, a non-retainable land belonging to the rent receiver vested in the Government from the date of notification of acquisition and publication of compensation assessment roll under the State Acquisition and Tenancy Act. In the present case the compensation assessment roll has been prepared and published in the Bangladesh Gazette pursuant to section 44 of the said Act. Accordingly, the hat in question vested in the Government from the date of publishing its acquisition in the Bangladesh Gazette and in order to protect the interest of the Government the impugned order dated 7-10-1993 was issued. Any defect or irregularity in publishing the compensation assessment roll would not stand on the way of vesting the hat in the Government.

 

Bangladesh Biman Corporation and others vs Md Jusimuddin 7 BLC (AD) 32.

 

Section 37(3)

 

It is contended on behalf of the petitioner that the writ-petitioner having failed to prove the creation and existence of the wakf estate known as waqf estate by producing the deed of waqf or any other cogent evidence, the High Court Division erred in law making the Rule absolute and consequently directing to assess annuity in respect of waqf estate. It is clear that Member 2, Land Appeal Board upon erroneous view of the judgment passed in Other Class Suit No. 84 of 1965 opined that the Mutwalli had failed to establish that Ijjatunnessa and Rahimunnessa did not delegate property for charitable purpose and thereby had rejected the prayer of Mutwalli for assessment of annuity of the wakf estate known as waqf estate but the Other Class Suit No. 84 of 1965 was dismissed with the finding on consideration of Ext 3 and 3a that the properties described in schedules 1 and 2 were the waqf properties of Ijjatunnessa and Rahimunnessa known as waqf estate as has been rightly found by the High Court Division.

 

Abdus Samad (Md) and others vs Abul Fayez Dewan Abdur Rahman 7 BLC (AD) 22.

 

Section 44

 

Although the State Acquisition and Tenancy Act promulgated in the year 1950 but the relationship between landord and tenant ceased to exist on and from 14-4-1956 corresponding to 1-1-1363 BS.

 

Sharfuddin Ahmed and another vs AH Akbar and others 10 BLC 266.

 

Sections 46 and 150

 

It appears from the Ext. 2, the SA Khatian that the name of Hasanullah has been recorded as tenant but the name of the ex-proprietor Sunil Chandra Chowdhury has also been inserted in the SA Khatian No. 1160. It has been contended on behalf of the Government that 90 decimals of land of the suit plot No. 5703 was correctly recorded in the name of Hanuram Prashad under khatian No. 1158 which reveals from Ext Kha. Since the SA Khatian was in the name of Hanuman Prashad being Khatian No. 1158 and the khatian the Ext Kha was printed and distributed to the tenants under the provision of section 46 of the State Acquisition and Tenancy Act. It is also argued that in order to correct the invalid khatian, namely, khatian No. 1160 in the name of Hasanullah as well as other khatians comprising the land of the suit plot, the Relief and Rehabilitation Department by their application dated 15-7-87 initiated a proceeding for correction of the spurious record of rights which was obtained and procured by practising fraud and accordingly, SA khatian No. 1160 along with 4 khatians were cancelled according to the provision of rule 23(4) of the Tenancy Rules, 1955. Taking into consideration the oral evidence, the Exhibit 2 and the Exhibit Kha, the conclusion would follow that Exhibit Kha strikes the very basis and foundation of the claim of the plaintiff and it can undoubtedly be said that the plaintiff had acquired no valid title in the suit land and plaintiff has miserably failed to prove the alleged pattan on the basis of which SA khatian was prepared in the name of Hasanullah and hence the trial Court has rightly dismissed the suit.

 

Amannllah vs Bangladesh & ors 7 BLC 98.

 

Sections 76, 85 and 92

 

Admittedly, the plaintiffs have not violated the terms and conditions of the settlement and in such view of the matter the settlement of the plaintiffs cannot be cancelled without show cause notice and assigning reasons and even after the expiry of lease period the plaintiffs cannot also be evicted without the process of law. In the facts and circumstances the contention of the petitioner that the suit is barred under section 76(2) of the said Act is without any substance and sections 85 and 92 of the said Act are not applicable in the instant case.

 

A Motaleb vs A Mannan Haider and. others 8 BLC (AD) 137.

 

Sections 76(2) and 81B

 

Admittedly, no lease deed was executed so far as to confer any legal right on the plaintiffs. Memorandum issued by the Government and the Rules relating to the settlement incorporated in the Government Estate Manual have no statutory force but merely provide guidelines and cannot be invoked for claiming a legal right. Thus one could only avail of the forum of the civil Court for enforcement of any legal right or to redress the violation thereof.

 

Abdullah and others vs Abdul Kadar and ors 9 BLC (AD) 130.

 

Section 81A(1)

 

Proviso to section 85(2) of the NAT Act and the section 81 A(l) of the SAT Act clearly show that non-agricultural tenants under the government by virtue of acquisition of the superior right in non-agricultural land by the provision of SAT Act, the provisions of NAT Act, if so were application of such tenants at the time of acquisition, would be regulated by the provisions of the NAT Act. The" application of section 24 of the NAT Act has been excluded by the provision of section 85(2) of the NAT Act in respect of the land mentioned in section 85(l)(a,b,c,d,e) and land of Dhanmondi Residential Area being the land of one of the category of lands as described in section 85(l)(a,b,c,d,e) application of provision of section 24 of the NAT Act has been excluded by section 85(2), NAT Act.

 

Kamrun Nahar Begum us Nurul Alam Chow'dhury and another 8 BLC (AD) 55.

 

Sections 82, 90 and 96

 

Pre-emption under section 96 of the Act is available on fulfilment of the conditions as are in the said section subject to the land so sought to be pre-empted and if allowed it would not exceed the total quantity of land a tenant can hold as per provision of section 90 of the said Act. The law is now well settled that homestead of the raiyat outside municipality is pre-emptible under section 96 of the Act.

 

Fazlu Miah (Md) and others vs Asabur Rahman and other 10 BLC (AD) 10.

 

Sections 89 & 96(1)

 

Admittedly, the respondent No. 1 being a co-sharer by purchase was entitled to pre-empt the transferred land by either filing an application under section 96(1) of the State Acquisition and Tenancy Act within 4 months of the service of the notice given under section 89 of the State Acquisition and Tenancy Act or if no notice has been served as aforesaid, within 4 months of the date of knowledge of the transfer. In view of the above, the respondent having filed the case within 4 months from the date of issuance of the notice dated 21-1-1981 was entitled to pre-empt case land inasmuch as the issuance of the notice dated 21-1-1981 having the presumption that the official act has been done regularly in the absence of any evidence to the contrary carry a presumption of regularity to hold that the notice was issued on 21-1-1981.

 

Raushan Akhter @ Moharaji Bibi & others vs Khandakar Mosharraf Hossain and others 9 BLC (AD) 109.

 

Section 95(2)

 

Reading of sub-section 2 of section 95 of the Act manifestly demonstrates that every usufructuary mortgage shall be registered under Registration Act and the word "shall" being mandatory means "must". Transfer of a holding or of portion or a share thereof either by way of an out and out sale with an Agreement of re-conveyance, to put differently, an Agreement of re­conveyance, if to be deemed to be an usufructuary mortgage, is to be registered under the Registration Act and an unregistered Agreement of re-conveyance cannot be treated or deemed to be a complete usufructuary mortgage.

 

Selim Said vs A Majid Molla and others 10 BLC 603.

 

Section 96

 

High Court Division committed no illegality in holding that the original pre-emptor was not a co-sharer by inheritance on the basis of a deed of gift. Present petitioners are being the legal representatives of the original pre-emptor they cannot be treated as co-sharers by inheritance at the time of filing the pre­emption case.

 

Momtazuddin Sarker and others vs Abdur Rob & others 6 BLC (AD) 113.

 

Section 96 Right of pre-emption cannot be defeated by re-conveying the case land during the pendency of pre­emption case—

 

Court of appeal below did not consider any of the evidence adduced by the opposite party Nos. 1 and 2 when the trial Court is perfectly right in rejecting the 'Ekrarnama' as not genuine as it was created subsequently to defeat the right of pre-emption.

 

Jahangir Alam vs Sailish Chandra and ors 6 BLC 508.

 

Section 96

 

The Ekrarnama was false and the RM case was filed with a view to defeating the application for pre-emption and that the petitioner was not able to prove the date of his knowledge regarding the transfer of the suit land and the application for pre-emption, having been filed almost 3 years after registration of the sale, is barred by limitation as has been rightly found by the learned appellate Court. But the decision of the learned lower appellate Court so far it relates to the requirement of registration of the Ekrarnama is erroneous.  

 

Monir Ahmed & others vs Lutu Meah and others 7 BLC 518.

 

Section 96

 

The High Court Division has rightly held that even if the case land is a homestead or part of it is a homestead it is not exempted from the operation of section 96 of the State Acquisition and Tenancy Act and it has not barred pre­emption if the case land is beyond the municipal area.

 

Abdus Salam Mia and another vs Sontosh Kumar Majumder and others 8 BLC (AD) 147.

 

Section 96

 

In a pre-emption case when the case holding does not appear to be a mortgaged property or charged for mortgage sale, such holding, even, if sold in execution of any money decree in any money execution proceeding, any alienation by the judgment-debtor does not come within the purview of the doctrine of lis pendens in the absence of the proof of service of notice under Order XXI, rule 54 of the Code upon the alienor or the alienee as the case may be.

 

Badiul Alam vs Md Nurul Islam 8 BLC 30.

 

Section 96

 

Being unsuccessful in restoring the pre-emption case filed under section 96 of the State Acquisition and Tenancy Act the Pre-emptor preferred an appeal under Order XLIII, rule l(c) of the Code which was allowed by the learned Subordinate Judge in the impugned order. It is the view of our Appellate Division that no appeal lies against an order dissmissing an application made under Order IX, rule 3 of the Code for restoration of a proceeding under section 96 of the State Acquisition and Tenancy Act and such view shall apply equally to an application laid under Order IX, rule 9 of the Code for restoring a pre-emption case to its file and number. Thus, the Miscellaneous Appeal preferred before the District Judge was not tenable in law.

 

Haripada Mandal vs Bidhan Chandra Mondal 8 BLC 155.

 

Section 96

 

Proceeding in any Court of Civil Jurisdiction undisputedly is a proceeding of Original nature. Pre-emption proceeding under section 96 of the State Acquisition and Tenancy Act is definitely a proceeding of original nature just like' a suit. Thus, it can demonstratively be held that proceeding under section 96 of the said Act being an original proceeding under section 141 of the Code is very much applicable in such proceeding.

 

Ismail Hossain Biswas (Md) vs Rahima Khatun and others 8 BLC 144.

 

Section 96

 

A distinction is to be made in between an order passed in a suit and an order passed in Miscellaneous proceeding like Pre-emption proceeding which is a summary proceeding. Final determination of the rights of the parties in a suit is expressed through a decree but in a Miscellaneous proceeding like Pre-emption proceeding the final determination of the controversy is expressed though a decision of a court which is not a decree. In a Pre­emption proceeding rights of the parties that is, the pre-emptor and the pre-emptee, are finally determined or laid or vested through an order and, as such, order passed in Pre-emption proceeding forms the character of a decree though not exactly a decree. Thus the order passed in a Pre­emption proceeding got all the trappings of a decree passed in a suit but it is exactly not a decree.

 

Ismail Hossain Biswas (Md) vs Rahima Khatun and others 8 BLC 144.

 

Section 96

 

Whatever transaction took place between the pre-emptees and their vendor was a product of collusion and the transaction is tainted with fraud and the said transaction was made collusively and fraudulently by the pre-emptee and the original vendor only to defeat the claim of the pre-emptor. The reconveyance transaction being tainted with fraud and collusion the same can in no way deprive the pre-emptor of his claim of pre-emption and in a case like the present one if the pre­emption is rejected that would amount to giving premium to the fraudulent and collusive transaction between the original owner and the pre-emptees.

 

Ambiya Khatun and others vs Noor Ahmed and others 9 BLC (AD) 114.

 

Section 96

 

Since the pre-emptor Subitri Sundari Mali transferred her land by way of gift dated 27-10-1999 in favour of substituted opposite party No. l(a) the contiguous plot No. 334 and got no subsisting interest on the contiguous plot No. 334 to the plot transferred which is plot No. 335 she got no right to be graced with a verdict of pre-emption. Both pre-emptor and the pre-emptee acquired equal status, that is strangers to case holding. Such transfer by way of gift was not within knowledge of the pre-emptee when civil revision case was heard and disposed of. This is a discovery of a new and important matter which is a good ground for review of the decision in civil revision case. This can be also, characterised as an error apparent on the face of the record. Similarly, non impleading of contiguous land owners in Pre-emption Miscellaneous case and non-consideration of the ground can be characterised as an error apparent on the face of the record.

 

Mofizul Islam Barker (Md) vs Subitri Sundari Mali and others 9 BLC 146.

 

Section 96

 

The proceeding initiated under section 96 of the SAT Act is a summary one. Such application for pre­emption can never be termed as a plaint. Further taking evidence upon such application for deciding the consideration of the transfer is serious abuse of the process of the Court. Without disposing of the case finally, learned Assistant Judge entertained a misconceived application and thereby wasted time and energy not only of the parties but also of the Court. Learned District Judge has correctly approached the issues involved and set aside the order of the trial Court which calls for no interference.

 

Abdul Hamid Gazi (Md) vs Md Shamsul Hague 9 BLC 458.

 

Section 96

 

In a pre-emption case the pre-emptee filed an application under Order VII, rule 11 of the Code for rejection of plaint on the ground that the pre-emptor failed to make statutory deposit according to consideration money of the kabala in question which was heard by the trial Court and examined the witnesses and directed the pre-emptor to deposit the balance amount. Before final disposal of the case, the entertainment of such an application under Order VII, rule 11 read with section 151 of the Code and the decision thereunder is a misconceived one.

 

Abdul Haque Gazi vs Shamsul Haque and others 9 BLC 600.

 

Section 96

 

The pre-emption case was allowed with a direction to deposit the develpment cost fixing certain date and in default the pre-emption case shall stand dismissed. In appeal no stay was granted but the pre-emptor deposited the development cost after expiry of the scheduled date which cannot be accepted.

 

Birendra Nath Kar vs Abdul Mannan Kazi and others 10 BLC (AD) 157.

 

Section 96

 

Since the land sought to be pre-empted is admittedly in the rural area and that it having not been established that the settlement of the land sought to be pre­empted was taken for the purpose other than agricultural purpose, the High Court Division was not in error in discharging the Rule which was obtained against the judgment of the appellate Court dismissing the Miscellaneous case filed under section 24 of the Non-Agricultural Tenancy Act upon arriving at the finding that the land sought to be pre-empted is agricultural land.

 

Abdul Khaleque vs Abdul Noor and ors WBLC(AD) 222.

 

Section 96

 

Agreement being an unregistered one, thus, cannot be deemed to be a complete usufructuary mortgage deed and the same cannot at all come under the mischief either of section 95 or 95A of the Act. Corollary thereof is that sub-section 10(d) of section 95 of the Act cannot stand as a l^gal bar or legal predicament on the part of Pre-emptor-First party in having a favourable Judicial verdict of an order of pre-emption over the land under per-emption proceeding.

 

Selim Saial vs A Majid Molla and others 10 BLC 603.

 

Section 96

 

The trial Court considering the evidence on record allowed the pre-emption case when the appellate Court without considering the evidence on record reversed the same on the ground of limitation only though the pre-emption case was filed on 31-8-94 within 120 days of having knowledge in a Shalish held on 15-7-94 but wrongly the appellate Court took the view that the period of limitation started from the date of alleged execution of sale deed of the suit property on 7-3-93. The judgment and order of the appellate Court was set aside and those of the trial Court restored.

 

Honufa Begum'and others vs Rustom Ali and ors 10 BLC 250.

 

Section 96

 

From the amendment of the written objection filed by the pre-emptees in both the cases it is found that the pre-emptees admitted the pre-emptors as co-sharer in the case jote by deed of Heba executed by their father Amiruddin Shah in favour of the pre-emptors and other brothers. In view of such admission, which has been overlooked or was not brought to the notice of the Courts below it is clearly established that the pre-emptors are co-sharers in the case jote and the finding by the Courts below, that the pre-emptors are not co-sharers being contrary to the materials on record are not maintainable and are liable to be set aside.

 

Elahi Boksa @ Redo and another vs Maqbul Hossain Sarker and others 10 BLC 535.

 

Section 96—Barred by limitation—

 

The pre-emptees, specifically in the written objection by way of amendment, stated that they jointly with the pre-emptors and other co-sharers reared fishes and caught fishes in the tank and from the depositions of OPWs 1-3 it is found that the pre-emptees reared and caught fishes in the disputed tank along with the pre-emptors and other co-sharers since their purchase. The Courts below thus committed no error in holding that the pre-emptors had knowledge earlier about the disputed sale, in other words, the pre-emption case being Miscellaneous Case No. 24 is time barred.

 

Elahi Boksa & Hedo and another vs Maqbul Hossain Sarker and others 10 BLC 535.

 

Sections 96 and 117

 

The High Court Division was in error in holding that the pre-emptor was not a co-sharer of the land sought to be pre-empted upon an erroneous view that there was separation of Jama, though in fact in the eye of law there was no separation of Jama which the High Court Division in Miscellaneous Appeal No. 133 of 1991 itself found. The application for pre-emption was quite in form except mis-description or misquoting of the provision of law in the cause title. It does not dis-entitle a person of the relief if the Court find that he is entitled to the relief sought for and in such a situation the Court is required to grant the relief sought for.

 

Rokeya Begum vs Md Nurul Absar and others 9 BLC (AD) 169.

 

Sections 96 and 117(1) (c)

 

There cannot be any sub-division of holding and splitting up of the jama unless requirements of law embodied in section 117(l)(c) of the Act have been complied with. The pre-emptor-opposite party did not cease to be a co-sharer in the case holding in spite of mutation and sub­division proceeding and pre-emptee petitioner is a stranger.

 

Tanvir Mustafa (Md) vs Begum Rokeya Khandker and others 6 BLC 488.

 

Section 96(1) (4) (6)

 

Under section 96(6) of the Act the co-applicant is required to make the statutory deposit within the time allowed by the Court. Nowhere in the scheme of section 96 of the Act it has been spelt out that the co-applicant can make the necessary deposit after the final determination of his claim by the Court. Under section 96(1) of the Act, making the statutory deposit is a condition precedent for filing a pre-emption case but it is not so in case of an application under section 96(4) of the Act. In the latter case the co-applicant is required to make the necessary deposit within the time allowed by the Court and if he fails to do so, his application under section 96(4) of the Act would stand rejected.

 

Chand Miah vs Dabirul Islam Khan & ors 8 BLC 172.

 

Section 96(3)(b)

 

Neither any issue was framed nor any decision was arrived at on the point of improvement of the case land or on the point as to whether it was a case of waiver or acquiescence by trial Court as pleaded by the pre-emptees. Section 96(3)(b) of the State Acquisition and Tenancy Act contemplates an enquiry as to the actual amount of expenses incurred by the pre-emptee for the purpose of improvement as claimed which has not been complied with by the trial Court. It-further appears that those findings have not been based on any reasoning, arrived from assessment of evidence on record as contemplated by the mandatory provision of rule 4(2) of Order XX of the Code of Civil Procedure.

 

Mozibar Rahman Molla vs Md Rehazuddin 8 BLC 79.

 

Section 96(10)

 

The High Court Division has rightly taken the view that the sale in question having been made to a co-sharer by purchase and not a co-sharer by inheritance the application for pre-emption was quite maintainable.

 

Ansar Ali (Md) vs Md Abdur Rahman Mondal & others 6 BLC (AD) 17.

 

Section 96(10)(a)

 

On perusal of the impugned judgment it appears that the petitioners do not come within the explanation provided under section 96(10)(a) of the State Acquisition and Tenancy Act, 1951 as the cause of action of the case arose when the petitioners' father, a co-sharer by purchase was alive and during the pendency of the case he died, whereby petitioners were substituted and, as such, the petitioners could not claim themselves to be co-sharers by inheritance on the date of filing of the case so as to come within the mischief of the provision of section 96(10)(a) of the

 

Shajahan Seikh and others vs Md Siddique Khan 7 BLC (AD) 174.

 

Section 96(10) (c)

 

It is a settled principle of law that heba-bil-ewaz executed in favour of the donee in exchange of a copy of the Holy Quran, a prayer mat and a cap is a document carrying no pecuniary consideration. In the instant case, the petitioners being the Mamato brothers of opposite party No. 2 who is the donor, they are more nearer in decree with the donor than the cousin sister's son. It is therefore, the petitioners, in the light of the decision as reported in 48 DLR (AD) 88, are well within 3 decrees of consanguinity from the donor. Thus the petitioners have satisfied all the requirements of law as laid down in section 96(10)(c) of the State Acquisition and Tenancy Act and as such the transfer made to them on the basis of the heba-bil-ewaz cannot be pre-empted.

 

Liakat All Sheikh and ors vs Mahatabuddin and others 8 BLC 302.

 

Section 96(12)

 

Sub-section 12 of section 96 of the State Acquisition and Tenancy Act provides for an appeal against any order passed under section 96 of the said Act. On the strength of section 141 of the Code of Civil Procedure other remedies contemplated in the Code are, also, available to a party aggrieved in a proceeding under section 96 of the said Act. In the matter of setting aside an order passed ex parte the pre-emptee, against whom ex parte order had been passed, can pursue an appeal under section 96(12) of the State Acquisition and Tenancy Act as well as lay petition under Order IX, rule 13 of the Code of Civil Procedure and, also, a Review under Order XLVII, Rule 1 of the Code.

 

Ismail Hossain Biswas (Md) vs Rahima Khatun 8 BLC 144.

 

Section 144A

 

The presumption attached to the State Acquisition Record of Right under section 144 A of State Acquisition and Tenancy Act could not be rebutted by plaintiff through rebuttable evidence. In the event of conflict between old Record of Right and recent Record of Right, recent Record of Right would prevail inasmuch as presumption of Record of Right loses its weight with the passage of time and entry in the subsequent Khatian would be more acceptable than the entry in the earlier Khatian.

 

Fatema Khatun vs Fazil Mia 6 BLC 241.

 

543

Succession Act, 1925

Citation: 6 BLC 354

Case Year: 1925

Subject: Succession Act, 1925

Delivery Date: 2018-05-28

Succession Act, 1925

[XXXIX of 1925]

 

Sections 263 and 283

 

The appellant does not claim any interest in the suit property through testator Debendra Kumar Chakraborti, who died in Bangladesh as a citizen of this country leaving wife Raj Luxmi as the only legatee but claims adversely of the testator, the appellant has no locus standi to challenge the probate granted to Raj Luxmi by the learned District Judge.

 

ADC (Revenue) vs Arun Kumar Chakraborty and others 6 BLC 354.

544

Supreme Court of Bangladesh (High Court Division) Employees (Discipline and Appeal)Rules, 1983

Citation: 6 BLC (AD) 141

Case Year: 1983

Subject: Supreme Court of Bangladesh (High Court Division) Employees (Discipline and Appeal) Rules, 1983

Delivery Date: 2018-05-28

Supreme Court of Bangladesh

(High Court Division) Employees (Discipline and Appeal) Rules, 1983

 

 

Rules 2(1) and 3(6)Per Md Ruhul Amin J (dissenting):

 

It is the Registrar who is the competent authority in respect of the respondent for taking disciplinary action and that the Registrar on consideration of the materials on record having made the decision for awarding punishment to the respondent and having passed the order of removal the same cannot be said to have been passed in violation of the Rules.

 

Registrar, Supreme Court of Bangladesh vs Md Shafiuddin and another 6 BLC (AD) 141.

 

Rule 2(2)

 

Per Mohammad Gholam Rabbani J : The charge was not admitted by the respondent rather he denied it as baseless. It cannot also be said that there was nexus between the charge brought against him and his so-called admission in his reply to the charge which was not the direct admission of the charge. Even if it is conceded that the statements made by the respondent amounted to admission of misconduct, he could not be removed from service for the alleged admission without holding a formal enquiry in accordance with rules. Admittedly, instead of the Registrar, the Chief Justice himself proposed for major punishment to both the accused and accordingly, second show cause notice was issued but the Chief Justice was not given to consider the replies and the Registrar imposed major punishment on the respondent and in fact acquitted the other and such action must be held to be malafide, biased and illegal.

 

Registrar, Supreme Court of Bangladesh vs Md Shafiuddin and another 6 BLC (AD) 141.

 

 

Taxes Department (Class II, Officers and Employees)

Recruitment Rules, 1995

 

Schedule (4)(5)The Rules of 1995 provide for reservation of 15% posts of Inspectors for Stenotypists, who have no other scope of promotion and such reservation cannot be said to have taken away the vested rights of the petitioners. It appears from the impugned office order dated 7-1-2003 that the vested right of the petitioners was taken away for promotion to the post of Inspector of Taxes inasmuch as a new rule of seniority was introduced by the authority. When the petitioners entered into the service of the Republic, there was no such rule for determination of seniority. The office order in question may operate prospectively and it may be applicable for newcomers who joined/will join in the aforesaid posts after the office order is made. Thus, the said office order so far as it relates to clauses (Ka) and (Kha) thereof contained in Annexure 'F is ultra vires the Constitution. Abdul Bari (Md) and 23 others vs Bangladesh represented by the Secretary, Internal Resources and others 9 BLC6 78.

545

Tenancy Rules, 1955

Citation: 7 BLC 98

Case Year: 1955

Subject: Tenancy Rules, 1955

Delivery Date: 2018-05-28

Tenancy Rules, 1955

 

Rule 23(4)

 

Taking into consideration the oral evidence, the Exhibit 2 and the Exhibit Kha, the conclusion would follow that Exhibit Kha strikes the very basis and foundation of the claim of the plaintiff and it can undoubtedly be said that the plaintiff had acquired no valid title in the suit land and plaintiff has miserably failed to prove the alleged pattan on the basis of which SA khatian was prepared in the name of Hasanullah and hence the trial Court has rightly dismissed the suit.

 

Amanullah vs Bangladesh & ors 7 BLC 98.

546

THE CODE OF CIVIL PROCEDURE 1908

THE CODE OF CIVIL PROCEDURE 1908

(ACT NO V OF 1908).

[21st March, 1908]

An Act to consolidate and amend the laws relating to the Procedure of the Courts of Civil Judicature.

WHEREAS it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; It is hereby enacted as follows:-

PRELIMINARY

Commencement and extent

1.(1) This Act may be cited as the Code of Civil Procedure 1908.

(2) It shall come into force on the first day of January, 1909.

(3) It extends to the whole of Bangladesh.

Definitions

2. In this Act, unless there is anything repugnant in the subject or context,-

(1) "Code" includes rules:

(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final:

(3) "decree-holder" means any person in whose favour a decree has been passed or an order capable of execution has been made:

(4) "district" means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a "District Court", and includes the local limits of the ordinary original civil jurisdiction of the High Court Division:

(5) "foreign Court" means a Court situate beyond the limits of Bangladesh which has no authority in Bangladesh and is not established or continued by the Government:

(6) "foreign judgment" means the judgment of a foreign Court:

(7) "Government Pleader" includes any officer appointed by the Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader:

(8) "Judge" means the presiding officer of a Civil Court:

(9) "Judgment" means the statement given by the Judge of the grounds of a decree or order:

(10) "Judgment-debtor" means any person against whom a decree has been passed or an order capable of execution has been made:

(11) "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued:

(12) "mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits but shall not include profits due to improvements made by the person in wrongful possession:

(13) "movable property" includes growing crops:

(14) "order" means the formal expression of any decision of a Civil Court which is not a decree:

(15) "pleader" means any person entitled to appear and plead for another in Court:

(16) "prescribed" means prescribed by rules:

(17) "public officer" means a person falling under any of the following descriptions, namely:-

(a) every Judge;

(b) every member of the Civil Service of  The Republic;

(c) every commissioned or gazetted officer in the military, naval or air forces of Bangladesh while in the service of the 5[ Republic];

(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the Court, and every person especially authorised by a Court of Justice to perform any of such duties;

(e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

(f) every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue-process, or to investigate, or to report on, any matter affecting the pecuniary interest of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; and

(h) every officer in the service or pay of the 6[ Republic], or remunerated by fees or commission for the performance of any public duty:

(18) "rules" means rules and forms contained in the First Schedule or made under section 122 or section 125:

(19) "share in a corporation" shall be deemed to include stock, debenture stock, debentures or bonds: and

(20) "signed", save in the case of a judgment or decree, includes stamped.

Subordination of Courts

3. For the purposes of this Code, the District Court is subordinate to the High Court Division, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court Division and District Court.

Savings

4.(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special  law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a land-holder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.

Application of the Code of Revenue Courts

5.(1) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the Government may, by notification in the official Gazette, declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such notifications as the Government may prescribe.

(2) "Revenue Court" in sub-section (1) means a Court having jurisdiction under any 8[ * * *] law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature.

Pecuniary Jurisdiction

6. Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

Small Cause Courts

7. The following provisions shall not extend to Courts constituted under the Small Cause Courts Act 1887, or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act, that is to say,-

(a) so much of the body of the Code as relates to-

(i) suits excepted from the cognizance of a Court of Small Causes;

(ii) the execution of decrees in such suits;

(iii) the execution of decrees against immovable property; and

(b) the following sections, that is to say,-

section 9

sections 91 and 92,

sections 94 and 95 so far as they authorise or relate to-

(i) orders for the attachment of immovable property,

(ii) injunctions,

(iii) the appointment of a receiver of immovable property, or

(iv) the interlocutory orders referred to in clause (e) of section 94; and sections 96 to 112 and 115.

[Omitted]

8. Omitted by the Adaptation of Central Acts and Ordinance Order 1949.

PART I

SUITS IN GENERAL

Jurisdiction of the Courts and Res Judicata

Courts to try all civil suits unless barred

9. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation -A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

Stay of suit

10. No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in Bangladesh having jurisdiction to grant the relief claimed, or in any Court beyond the limits of Bangladesh established or continued by the Government and having like jurisdiction, or before the Supreme Court.

Explanation:-The pendency of a suit in a foreign Court does not preclude the Court in Bangladesh from trying a suit founded on the same cause of action.

Res Judicata

11. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I.-The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II.-For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III.-The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV.-Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation VI.-Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

Bar to further suit

12. Where a plantiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

When foreign judgment not conclusive

13. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of Bangladesh in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in Bangladesh.

Presumption as to foreign judgments

14. The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

Place of Suing

Court in which suits to be instituted

15. Every suit shall be instituted in the Court of the lowest grade competent to try it.

Suits to be instituted where subject-matter situate

16. Subject to the pecuniary or other limitations prescribed by any law, suits-

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,

(d) for the determination of any other right to or interest in immovable property,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment,

shall be instituted in the Court within the local limits of whose jurisdiction the property is situate, or, in the case of suits referred to in clause (c), at the place where the cause of action has wholly or partly arisen:

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or, in the case of suits referred to in clause (c), at the place where the cause of action has wholly or partly arisen, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Explanation: -In this section "property' means property situate in Bangladesh

Suits for immovable property situate within jurisdiction of different Courts

17. Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate:

Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court

Place of institution of suit where local limits of jurisdiction of Courts are uncertain

18.(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainly, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction:

Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction.

(2) Where a statement has not been recorded under sub-section (1), and an objection is taken before an appellate or revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the appellate or revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainly as to the Court having jurisdiction with respect thereto and there has been a consequent failure of justice.

Suits for compensation for wrongs to person or movables

19. Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

Illustrations

(a) A, residing in Chittagong beats B in Dhaka.

B may sue A either in Dhaka or in Chittagong.

(b) A, residing in Chittagong publishes in Dhaka statements defamatory of B. B may sue A either in Dhaka, or in 13[ Chittagong].

Others suits to be instituted where defendants reside or cause of action arises

20. Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction.

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually or voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually or voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

Explanation I:-Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence.

Explanation II:-A Corporation shall be deemed to carry on business at its sole or principal office in Bangladesh or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

Illustrations

(a) A is a tradesman in Dhaka. B carries on business in  Chittagong. B, by his agent in Dhaka, buys goods of A and requests A to deliver them to the Bangladesh Biman. A delivers the goods accordingly in Dhaka. A may sue B for the price of the goods either in Dhaka, where the cause of action has arisen, or in Chittagong, where B carries on business.

(b) A resides at Cox's Bazar, B at Dhaka and C at 18[ Chittagong]. A, B and C being together at Khulna, B and C make a joint promissiory note payable on demand, and deliver it to A. A may sue B and C 20[ at Khulna], where the cause of action arose. He may also sue them at Dhaka, where B resides, or at  Chittagong, where C resides; but in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the Court.

Objections to jurisdiction

21. No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.

Power to transfer suits which may be instituted in more than one Court

22. Where a suit may be instituted in any one of two or 22. Where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed.

To what Court application lies

23.(1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under section 22 shall be made to the Appellate Court.

(2) Where such Courts are subordinate to different Appellate Courts, the application shall be made to the High Court Division.

(3) Omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act 1973 (Act No VIII of 1973).

General power of transfer and withdraws

24.(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court Division or the District Court may at any stage-

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which thereafter tries such suit may, subject to any special directions in the case of any order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this section, Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court.

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

Appearance of parties on transfer of suit, etc

24A.(1) Where any suit is transferred under section 22, or any suit, appeal or other proceeding is transferred or withdrawn under sub-section (1) of section 24 on the application of a party, the Court ordering the transfer or withdrawal shall fix a date for the appearance of the parties before itself, if the suit, appeal or other proceeding is to be tried or disposed of by itself, or before the Court to which the case is so transferred.

(2) Where any suit, appeal or other proceeding is transferred from one Court to another, otherwise than on the application of a party, the parties thereto shall appear before the Court from which the suit, appeal or other proceedings is to be transferred, on the day already fixed for their appearance before that Court, and such Court shall then communicate the order of transfer to such parties and direct them to appear before the Court to which the suit, appeal or other proceeding is to be transferred, either on the same day, or on such earliest day as may be reasonable having regard to the distance at which the other Court is located.

[Omitted]

25. Omitted by the Schedule of the Central Laws (Statute Reform) Ordinance, 1960 (Ordinance No. XXI of 1960).

Institution of suits

26. Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed

Summons to defendants

27. Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed.

[Omitted]

28. Omitted by the Bangladesh Laws (Revision And Declaration) Act 1973 (Act No VIII of 1973), section 3 and 2nd Schedule.

Service of foreign summonses

29. Summonses and other processes issued by any Civil or Revenue Court situate outside Bangladesh may be sent to the Courts in Bangladesh and served as if they were summonses issued by such Courts:

Provided that the Government has by notification in the official Gazette declared the provisions of this section to apply to such Courts.

Power to order discovery and the like

30. Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party,-

(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;

(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;

(c) order any fact to be proved by affidavit.

Summons to witness

31. The provisions in sections 27, 28 and 29 shall apply to summonses to give evidence or to produce documents or other material objects.

Penalty for default

32. The Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may-

(a) issue a warrant for his arrest;

(b) attach and sell his property;

(c) impose a fine upon him not exceeding five hundred Taka;

(d) order him to furnish security for his appearance and in default commit him to the civil prison.

Judgment and decree

33. The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow.

Interest

34.(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.

2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie.

Costs

35. (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.

(2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing.

(3) The Court may give interest on costs at any rate not exceeding six per cent. per annul, and such interest shall be added to the costs and shall be recoverable as such.

Compensatory costs in respect of false or vexatious claims or defences

35A.(1) If in any suit or other proceeding, including an execution proceeding, not being an appeal, any party objects to the claim or defence on the ground that the claim or defence, or any part of it, is false or vexatious, and if, thereafter, such claim or defence is disallowed, in whole or in part, the Court shall, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector, such cost by way of compensation which may, without exceeding the limit of the Court's pecuniary jurisdiction, extend up to twenty thousand taka.

(2) No person against whom an order has been made under this section shall, by reason thereof, be exempted from any criminal liability in respect of any claim or defence made by him.

(3) The amount of any cost awarded under this section in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence.

Cost for delay in making applications, etc, in respect of interlocutory matters

35B.(1) If at any stage of a suit or proceeding, an application or written objection is not filed within the time fixed by the Court, such application or written objection, as the case may be, shall not be admitted for hearing without payment by that party of such cost to the other party not exceeding two thousand taka.

(2) If after filing of written statement, any party to the suit makes an application in respect of any matter which, in the opinion of the Court, could and ought to have been made earlier, and is likely to delay the main proceeding of the suit, the Court may admit, but shall not hear and dispose of the application, without payment by that party of such cost to the other party not exceeding three thousand taka, as it shall determine and direct, and upon failure to pay the cost, the application shall stand rejected.

PART II

EXECUTION

General

Application to orders

36. The provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders.

Definition of Court which passed a decree

37. The expression "Court which passed a decree," or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,-

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and

(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

Courts by which decrees may be executed

38. A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.

Transfer of decree

39. (1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court,-

(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or

(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or

(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or

(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.

[Omitted]

40. [Omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973).]

Result of execution proceedings to be certified

41. The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure.

Powers of Court in executing transferred decree

42.(1) The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.

(2) Without prejudice to the generality of the foregoing provision, the Court executing a decree sent to it shall have the following powers, namely:-

(a) power under section 39 to transfer the decree to another Court, if necessary;

(b) power under sub-section (1) of section 50 to permit execution to proceed against the legal representatives of a deceased judgment-debtor;

(c) power under section 152 to correct clerical or arithmetical errors;

(d) power under rule 16 of Order XXI to recognise the assignment of a decree;

(e) power under sub-rule (2) of rule 50 of Order XXI to grant leave to a decree-holder to proceed against a person not already recognised as a partner in a firm in an execution proceeding against the firm;

(f) power under clause (b) of sub-rule (1) of rule 53 of Order XXI to give notice of attachment of decree passed by another Court.

Execution of decrees passed by British Courts in places to which this Part does not extend or in foreign territory

43. Any decree passed by a Civil Court established in any area in Bangladesh to which the provisions relating to execution do not extend,  may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in manner herein provided within the jurisdiction of any Court in Bangladesh.

[Omitted]

44. Omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act 1973 (Act No VIII of 1973).

Execution of decrees passed by Courts in the United Kingdom and other reciprocating territory

44A.(1) Where a certified copy of a decree of any of the superior Courts of  any reciprocating territory has been filed in a District Court, the decree may be executed in Bangladesh as if it had been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

Explanation 2.- "Reciprocating territory" means 32[ any] country or territory as the Government may, from time to time, by notification in the official Gazette, declare to be reciprocating territory for the purposes of this section; and "Superior Courts", with reference to any such territory, means such Courts as may be specified in the said notification.

Explanation 3.- "Decree", with reference to a superior Court, means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, and

(b) in no case includes an arbitration award, even if such award is enforceable as a decree or judgment.

[Omitted]

45. Omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act 1973 (Act No VIII of 1973).

Precepts

46.(1) Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.

(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree:

Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.

[Omitted]

47. [Omitted by section 3 of the Code of Civil Procedure (Amendment) Ordinance, 1983 (Ordinance No. XLVIII of 1983).]

Limit of Time for Execution

Execution barred in certain cases

48.(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from?

(a) the date of the decree sought to be executed, or,

(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

(2) Nothing in this section shall be deemed?

(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application; or

(b) to limit or otherwise affect the operation of article 183 of the First Schedule to the Limitation Act, 1908.

Transferees and Legal Representatives

Transferee

49. Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-holder.

Legal representative

50.(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.

(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.

Procedure in Execution

Powers of Court to enforce execution

51. Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by sale without attachment of any property;

(c) by arrest and detention in prison;

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require:

Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property; or

(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.

Explanation.-In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.

Enforcement of decree against legal representative

52. (1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.

(2) Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally.

Liability of ancestral property

53. For the purposes of section 50 and section 52, property in the hands of a son or other descendant which is liable under Hindu law for the payment of the debt of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.

Partition of estate or separation of share

54. Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.

Arrest and Detention

Arrest and detention

55.(1) A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the Court, and his detention may be in the civil prison of the district in which the Court ordering the detention is situate, or, where such civil prison does not afford suitable accommodation, in any other place which the Government may appoint for the detention of persons ordered by the Courts of such district to be detained:

Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling-house shall be entered after sunset and before sunrise:

Provided, secondly, that no outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the officer authorised to make the arrest has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe the judgment-debtor is to be found:

Provided, thirdly, that, if the room is in the actual occupancy of a woman who is not the judgement-debtor and who according to the customs of the country does not appear in public, the officer authorised to make the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest:

Provided, fourthly, that, where the decree in execution of which a judgment-debtor is arrested, is a decree for the payment of money and the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him.

(2) The Government may, by notification in the official Gazette, declare that any person or class of persons whose arrest might be attended with danger or inconvenience to the public shall not be liable to arrest in execution of a decree otherwise than in accordance with such procedure as may be prescribed by the Government in this behalf.

(3) Where a judgment-debtor is arrested in execution of a decree for the payment of money and brought before the Court, the Court shall inform him that he may apply to be declared an insolvent, and that he may be discharged if he has not committed any act of bad faith regarding the subject of the application and if he complies with the provisions of the law of insolvency for the time being in force.

(4) Where a judgment-debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the Court may release him from arrest, and, if he fails so to apply and to appear, the Court may either direct the security to be realized or commit him to the civil prison in execution of the decree.

Prohibition of arrest or detention of women in execution of decree for money

56. Notwithstanding anything in this Part, the Court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money.

Subsistence allowance

57. The Government may fix scales, graduated according to rank, race and nationality, of monthly allowances payable for the subsistence of judgment-debtors.

Detention and release

58.(1) Every person detained in the civil prison in execution of a decree shall be so detained,-

(a) where the decree is for the payment of a sum of money exceeding fifty Taka, for a period of six months, and,

(b) in any other case for a period of six weeks:

Provided that he shall be released from such detention before the expiration of the said period of six months or six weeks, as the case may be,-

(i) on the amount mentioned in the warrant for his detention being paid to the officer in charge of the civil prison, or

(ii) on the decree against him being otherwise fully satisfied, or

(iii) on the request of the person on whose application he has been so detained, or

(iv) on the omission by the person, on whose application he has been so detained, to pay subsistence allowance:

Provided, also, that he shall not be released from such detention under clause (ii) or clause (iii), without the order of the Court.

(2) A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison.

Release on ground of illness

59. (1) At any time after a warrant for the arrest of a judgment-debtor has been issued the Court may cancel it on the ground of his serious illness.

(2) Where a judgment-debtor has been arrested, the Court may release him if, in its opinion, he is not in a fit state of health to be detained in the civil prison.

(3) Where a judgment-debtor has been committed to the civil prison, he may be released therefrom-

(a) by the Government, on the ground of the existence of any infectious or contagious disease, or

(b) by the committing Court, or any Court to which that Court is subordinate, on the ground of his suffering from any serious illness.

(4) A judgment-debtor released under this section may be re-arrested, but the period of his detention in the civil prison shall not in the aggregate exceed that prescribed by section 58.

Attachment

Property liable to attachment and sale in execution of decree

60.(1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other salable property, moveable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf: Provided that the following particulars shall not be liable to such attachment or sale, namely:-

(a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman;

(b) tools of artisans, and, where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seed-grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section;

(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and occupied by him;

(d) books of account;

(e) a mere right to sue for damages;

(f) any right of personal service;

(g) stipends and gratuities allowed to pensioners of the Government, or payable out of any service family pension fund notified in the official Gazette by the Government or the Government in this behalf, and political pensions;

(h) the wages of labourers and domestic servants, whether payable in money or in kind;

(i) salary to the extent of the first hundred Taka and one-half the remainder:

Provided that where such salary is the salary of a Servant of the 34[ Republic] or a servant of 35[ the Railway] or local authority, and the whole or any part of the portion of such salary liable to attachment has been under attachment, whether continuously or intermittently for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months and, where such attachment has been made in execution of one and the same decree, shall be finally exempt from attachment in execution of that decree;

(j) the pay and allowances of persons to whom the 36[ Army Act, 1952, Navy Ordinance, 1961, or the Air Force Act, 1953,] applies;

(k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 1925, for the time being applies in so far as they are declared by the said Act not to be liable to attachment;

(l) any allowance forming part of the emoluments of any servant of the 37[ Republic] or of any servant of 38[ the Railway] or local authority which the Government may by notification in the official Gazette declare to be exempt from attachment, and any subsistence grant or allowance made to any such servant while under suspension;

(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest;

(n) a right to future maintenance;

(o) any allowance declared by any Bangladesh law to be exempt from liability to attachment or sale in execution of a decree; and,

(p) where the judgment-debtor is a person liable for the payment of land-revenue, any movable property which, under any law for the time being applicable to him, is exempt from sale for the recovery of an arrear of such revenue.

Explanation 1.-The particulars mentioned in clauses (g), (h), (i), (j), (l) and (o) are exempt from attachment or sale whether before or after they are actually payable, and in the case of salary other than salary of a servant of the 39[ Republic] or a servant of 40[ the Railway] or local authority the attachable portion thereof is exempt from attachment until it is actually payable.

Explanation 2.-In clauses (h) and (i), "salary" means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (l), derived by a person from his employment whether on duty or on leave.

(2) Nothing in this section shall be deemed to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land.

Partial exemption of agricultural produce

61. The Government may, by general or special order published in the official Gazette, declare that such portion of agricultural produce, or of any class of agricultural produce, as may appear to the Government to be necessary for the purpose of providing until the next harvest for the due cultivation of the land and for the support of

547

The Code of Civil Procedure, 1908

Citation: 9 BLC (AD) 256, 10 BLC (AD) 58, 9 BLC (AD) 27, 10 BLC 283, 7 BLC 578, 6 BLC 130, 6 BLC 54, 6 BLC 549, 7 BLC 16, 7 BLC 697, 8 BLC 391, 9 BLC 56, 6 BLC 594, 8 BLC 81, 8 BLC 320, 8 BLC 320, 8 BLC 414, 8 BLC 688, 9 BLC 81, 9 BLC (AD) 33, 9 BLC 416, 10 BLC 53

Case Year: 1908

Subject: The Code of Civil Procedure

Delivery Date: 2018-05-06

The Code of Civil Procedure, 1908

[V of 1908]

 

Order I rule 10(2)

 

The loan as defined in section 2(kha) of the Artha Rin Ain cannot be read that in the background of particular transaction one of the parties to the transaction obtains loan for materialisation of the transaction to his benefit or to discharge his obligation to the other party arising out of said transaction, the party as regard whom the loanee has discharged his obligation, such party would also be considered a loanee of the Bank being the beneficiary. The High Court Division has committed no error in refusing to interfere with the order of the trial Court in striking out the names of the defendant Nos. 3 and 4.

 

Sonali Bank vs Md Sirajul Hoque Chowdhury & others 9 BLC (AD) 256.

 

Order I, rule 10(2)

 

The undisputed position in law is that plaintiff cannot have a relief against a person who is not a party in the suit. Provision of Order XXII, rule 10 of the Code of Civil Procedure provides for continuation of a suit in the background of the situation given therein i.e. assignment, creation or devolution of any interest during the pendency of the suit. In the instant case, none of the aforesaid situations are present and, as such, the said provision is of no assistance to the plaintiff-respondent in rebutting the contention of the appellants that the suit so far the same relates to validity of the deeds dated October 27,1969 for non impleading the recipients of the said deeds is bad in law.

 

Abu Naser Md Wahidun Nabi vs Balai Roy 10 BLC (AD) 58.

 

Order II rule 3

 

Admittedly, the respondent Nos. 1-6 who are strangers to the suit for specific performance of contract could not proceed with the revisional application against the order passed allowing the amendment of the written statement having no locus standi/cause to contest the same. Moreso, the plaintiff allegedly entered into an agreement for sale of the suit land with the respondent Nos. 1-6 after obtaining an ex parte decree for specific performance. Since the said decree has been set aside and the suit has been restored to its original file and number, until a decree is passed in favour of the plaintiff, no right would accrue to the respondent Nos. 1 to 6 over the suit land for enforcement of their alleged right under the agreement for sale with the plaintiff. The respondent Nos. 1-6, at the relevant time, being totally the strangers to the instant suit could neither be a party to the suit or entitled to be transposed as the petitioner in the revisional application to proceed with the Rule as they have no right to get any relief whatsoever therein.

 

Jahanara Begum and others vs Hazera Khatun and others 9 BLC (AD) 27.

 

Order II, rule 1(3)

 

The plaintiff cannot file a subsequent declaratory suit in respect of self-same property. The petitioner could pray for declaration of title and recovery of possession in the earlier suit but he could not subsequently file another declaratory suit by adding more prayers and, as such, the subsequent suit is barred under Order II, rule 1(3) of the Code of Civil Procedure.

 

Syed Anisur Rahman vs Government of Bangladesh & ors 10 BLC 283.

 

Order III rule 4(2)

 

When Rule 4(2) of Order III of the Code clearly mandates that unless the client itself determined the appointment of the learned Advocate with the leave of the Court till then such appointment will remain valid and none other than the client can seek for determination of the appointment of the learned Advocate and hence the impugned order debarring the learned Advocate from conducting the hearing of the suit on behalf of the defendants is liable to be set aside.

 

Ferdoushi Begum & Rubi and others vs Shaufo Khatun & ors 7 BLC 578.

 

Order III rule 6

 

Service return shows that the appellant was not at Barisal at the relevant time, the service is no service in the eye of law in the absence of any written document authorising respondent 1 to act as her agent to receive any summon or notice and hence no agency is created and the appeal was disposed of ex-parte it and will be reheard.

 

Hosne Ara Jalil vs Abdur Rab and others 6 BLC 130.

 

Order VI rule 2

 

Rule 2 of Order VI of the Code enshrines that every pleading shall contain statement in a concise form of the material facts on which the party relies for his claim or defence as the case may be but not the evidence by which they are to be proved. The manner of possession was a   j subject matter of evidence to be adduced at the time of trial.

 

 Hasenuddih (Md) vs Bangladesh, and others 6 BLC 54.

 

Order VI rule 4

 

The trial Court has correctly declared that the judgment and decree dated 24-5-98 and 31-5-98 respectively as obtained by defendant No. 1 in previous Title Suit No. 51 of 1997 was obtained by collusion and practising fraud in getting cancellation of the sale deed dated 14-5-69, when such decree goes whatever the cloud cast over the title of the plaintiffs is also cleared.

 

Abdus Sukur (Md) and others vs Bhasani Mondal and another 6 BLC 549.

 

Order VI rule 2

 

It is a cardinal principle of law that material facts must be stated by the parties either in offence or in defence. If a party omits to state a material fact in his pleading, he will not be allowed to lead evidence of that fact at the trial unless the pleading is lawfully amended. Even if, evidence is given on such facts, such evidence, must be kept out of the consideration of the Court. Even an argument involving a question of fact which has not been pleaded by the party concerned cannot be allowed at the stage of argument. In spite of clear assertion in the plaint about the written acknowledgments by the defendants, the contesting defendants have not refuted these facts in their written statement as a result of which these assertions of the plaintiff stand admitted according to the law of pleadings.

 

Reliable Jute Traders- and another vs Sonali Bank and others 7 BLC 16.

 

Order VI rule 4

 

When concealment, misrepresentation and suppression of facts are the elements of fraud and such elements of fraud have been proved in the instant case, the partition decree has been obtained by practising fraud upon the Court which is void ab initio.

 

 Fazlu Kha vs Mokhlesh Bepari- 7 BLC 697.

 

Order VI rule 4

 

Petitioner Bank after acceptance of Credit documents cannot turn back and cannot decline to reimburse payment given to beneficiary opposite party Company by opposite party Bank on the plea of fraud. It is observed that relief by way of injunction is available to that litigant who is prompt and vigilant and not to him who is indolent and sleep and sleep over his right. Petitioner Bank slepts and slepts and then lately rose seeking relief in bringing forth complaint of fraud. It was too late in the day to wake up and rise in ventilating grievances as to genuineness of credit documents.

 

 National Credit and Commerce Bank Limited vs Prime Bank Limited and ors 8 BLC 391.

 

Order VI rule 4

 

The plaintiff having failed to prove that her LTIs were obtained by the defendant on any blank stamp papers by practicing any fraud, the Courts below committed no illegality in disbelieving the case of the plaintiff and there is no error of law resulting in an error in the decision occasioning failure of justice.

 

Saheda Khatun and others vs Shaikh Md Ramjan AH 9 BLC 56.

 

Order VI rule 17

 

When a plaint is amended the suit is generally to be taken out from the list of peremptory hearing in order to enable the defendants to file an additional written statement, if any, they want. In this case, within 8 days of amendment of plaint the suit was again posted for ex parte disposal and such hurried action of the trial Court to dispose of the suit without presence of the petitioners does not appear to be bonafide.

 

Habibur Rahman & others (Md) vs MA Rashid and others 6 BLC 594.

 

Order VI rule 17

 

The plaintiff is not entitled to get the plaint amended seeking for a decree for specific performance of contract converting the suit of one character into suit of another character and to substitute one distinct cause of action depriving the right of other party acquired by lapse of time when specified limitation is three years from, the date of refusal.

 

 Government of Bangladesh and another vs Safia Choiodhury and another 8 BLC 81.

 

Order VI rule 17

 

The order dated 27-3-94 recording rejection of the amendment petition was very much revisable order under section 115, CPC and since a remedy in the Court was available to the plaintiff-opposite parties, inherent power under section 151 of the Code could not be at all invoked and the learned Subordinate Judge, thus, committed a substantial error of law in allowing the application presented under section 151 of the Code and allowing the amendment application dated 26-10-93.

 

Abdul Hannan & am us' Sharfuddin Md Reza Hai & ors 8 BLC 320.

 

Order VI rule 17

 

Learned Sub­ordinate Judge committed a patent illegality in allowing the amendment application of the plaintiff-opposite parties dated 26-10-1993 on reviewing the order dated 27-3-94 recording rejection of amendment petition. In the event of rejection of the first amendment application there was no justification on the part of the learned Subordinate Judge to allow the second amendment application moreso on reviewing the order dated 27-3-94 recorded by him in refusing to amend the plaint. Finality must attach to a decision rendered by a judge and the decision recorded by the said judge can be set aside or reversed not by the said judge but by a Superior Judge of a higher Court,

 

Abdul Hannan and another vs Sharfuddin Md Reza Hai & others 8 BLC 320.

 

Order VI rule 17

 

In a pending Civil Revision case the plaintiff-petitioner filed an application for amendment of the prayer portion of the plaint and prayed for a decree for confirmation of possession as well as the permanent injunction so that the defendant-opposite parties cannol disturb the plaintiff in her possession of the suit land. Since there is no legal bar to allow such amendment of plaint at revisiorial stage, relying on a decision ol the Appellate Division of the Supreme Court of Bangladesh, the application for amendment of plaint was allowed.

 

 Kajol Das & ors vs Manowara Begum and ors 8 BLC 414.

 

Order VI rule 17

 

By way of proposed amendment the eight and half kathas of property had been attempted to be substituted by nine and half kathas of property on plot No. 3159 and in the event of allowing proposed amendment there would be virtually a new case with new schedule and plaintiff would be required to stand on witness box to give testimony in assertion of his claim of possession with respect to nine and half kathas of property on plot No. 3159 and defendants-opposite party side in order to negative plaintiff's claim would be, also, required to file additional written statement controverting claim of plaintiff introduced by way of amendment and, also, to stand on witness box to give testimony in support of their case. In a suit for permanent injunction fundamental point is factum of possession and title can be gone into incidentally in coming to a just decision on possession. So, by proposed amendment the cause of action appeared to have been changed and plaintiff-petitioner could not be allowed to turn back to the stand taken by him earlier. 3.

 

Siddique (Md) Master vs Samsul Hoque and others 8 BLC 688.

 

Order VI rule 17

 

In the Civil Revision case presented against the appellate decree; the plaintiff did not obtain any order of stay staying further proceeding  of the money suit. So, after 18-7-88 as there was no stay operating the plaintiff was free to make the application for amendment for adding any claim to the relief already made in the suit. In the circumstances, the claim for further damages made beyond three years of the application for amendment already became barred.

 

Mirza Fashiul Alam and others vs Sonali Bank and ors 9 BLC 81.

 

Order VI rule 17

 

While on the basis of the materials as are on the record the relief as prayed for can very much be given to the plaintiff, then for mere non-compliance of the direction of the appellate Court while, at one time, sending the suit back on remand to the trial Court directing the plaintiff to amend the plaint suitably to a suit for partition from a suit for declaration of title and recovery of possession seeking relief of different nature from the relief prayed for by the plaintiff apparently erroneous then the Court is quite competent to grant the relief sought for by the plaintiff in spite of non-compliance of the direction of the Court to amend the plaint.

 

Golam Rasul (Md) vs Chan Mohammad 9 BLC (AD) 33.

 

Order VI rule 17

 

Amendment of the plaint regarding valuation of the suit will not change the nature and character of the suit. Mere delay in filing such application for amendment of plaint will not put an embargo.

 

Maleka Akther and ors vs Rahima Akhterandors 9 BLC 416.

 

Order VI, rule 17

 

From the amendment of the written objection filed by the pre-emptees in both the cases it is found that the pre-emptees admitted the preemptors as co-sharer in the case jote by deed of Heba executed by their father Amiruddin Shah in favour of the pre-emptors and other brothers. In view of such admission, which has. been overlooked or was not brought to the notice of the Courts below it is clearly established that the pre-emptors are co-sharers in the case jote and the finding by the Courts below, that the pre-emptors are not co-sharers being contrary to the materials on record are not maintainable and are liable to be set aside.

 

Elahi Boksa Hedo and another vs Maqbul Hossain Sarker 10 BLC 535.

 

Order VI rule 17 and Order VIII rule 2

 

Since the plaintiffs are found in possession of the suit land, there is no bar to allow the prayer for joint possession with defendants No. 7-10 along with declaration of title when amendment of the pleading can be allowed at any stage of the proceeding and if the amendment is allowed it would neither change the nature and character of the suit nor the plaint and when it is necessary to decide the questions involved in the suit. Moreso, as there was no statement in the written statement regarding non-passing of consideration of the kabala of the plaintiffs, the defendants' evidence to that effect was inadmissible in evidence.

 

Ramesh Chandra Mondal and ors vs Hemayet All Sheikh and ors 9 BLC 525.

 

Order VII rule 1(e)

 

It is the plaint as a whole which is to be considered and not the terminology or for that matter a few stray references. Cause of action of a suit arises when right of a plaintiff is denied or invaded by the other side and the suit for declaration of title on a property will be well within time if it is laid within the period of six years as prescribed under Article 120 of the Limitation Act.

 

Hasenuddin (Md) vs Bangladesh, and others 6 BLC 54.

 

Order VII rule 2

 

Uncorroborated statements of the plaintiff regarding cash payment to the defendant Nos. 1 arid 2 create doubt about such payment when in the plaint as well as in the deposition of PW 1 there is no specific statement as to the amount and the date of payment, only a period has been mentioned for such cash payment. Similarly, no specific date has been given regarding payment by cheque and there is no witness or documentary evidence about the payment through cheque. In the absence of any specific statement in the plaint and in the deposition of the PWs regarding the date, the amount of cash payment, amount and date of encashment of any cheque, the plaintiffs have failed to prove the payment by cash and the payment by cheque.

 

Shaikh Haji Musa Hakkani vs Kazi Md Abdul Majed and ors 7 BLC 534.

 

Order VII rule 3

 

In a suit for permanent injunction the plaintiffs shall have to prove their exclusive possession in the suit land to get a decree. In the instant case, the plaintiffs and defendants are co-sharers and they have right, title and interest in every inch of land. When the plaintiffs have failed to prove their exclusive possession in giving description sufficient to identify the suit land out of a vast plot the lands remained unspecified and complicated question of title and possession is involved in the suit and the question of partition is involved as well and in such view of the matter the simple suit for permanent injunction is not at all maintainable.

 

Hamida Akhter Khaturi and others vs Md Ramjan 7 BLC 287.

 

Order VII rule 3

 

It is contended on behalf of the petitioner that it will be evident from the purchase deeds of the plaintiff-respondents that the schedule appended therein is vague and therefore the High Court Division committed gross illegality in disturbing the finding of the appellate Court. It is a settled law that in case of dispute between the area and the boundary the boundary shall prevail.

 

Abul Kalam vs Md Abu Taker and others 8 BLC (AD) 149.

 

Order VII, rule 3

 

In the plaint it has been stated that some portion of the suit tank has been encircled by the defendants by constructing some pillars but nowhere in the plaint the suit tank has been specified or demarcated. The plaintiffs having failed to comply with the mandatory requirement of law in giving clear specification or boundary sufficiently to identify the suit tank, the plaintiffs are not entitled to any decree.

 

Abdur Rahim (Md) and others vs Government of Bangladesh 10 BLC 767.

 

Order VII rules 4 & 11

 

The suit has been filed for declaration of jote right and title to the suit land by adverse possession in a representative character asserting possession therein and there is no provision in law either under section 42 of the Specific Relief Act or any other law including Evidence Act specifically providing any bar in filing the suit of the nature for which the plaint of the suit is liable to be rejected.

 

Sharifuddin Ahmed (Md) and ors vs Md Ala Uddin and others 8 BLC (AD) 111.

 

Order VII rule 10

 

The Artha Rin Adalst committed no error in taking the view that the Bangladesh Commerce Bank Limited as reconstituted by Act XII of 1997 as a commercial bank and the defendant having taken loan from its predecessor Bangladesh Commerce and Investment Limited, the suit was maintainable before the said Adalat.

 

Hai Iron Industries and Re-Rolling Mills Ltd and others vs Bangladesh Commerce Bank Ltd and others 9 BLC 462.

 

Order VII rule 11

 

The emphasis given on the service of notice enjoined by section 152 of the Pourashava Ordinance as a condition precedent for institution of a suit clearlv shows the intention of the legislation and such provision is mandatory and not directory and non-service of such notice is a complete bar against the suit and hence the plaint is rejected.

 

Nurul Islam (Md), Chairman and others vs Sheikh Enterprise and others 6 BLC 47.

 

Order VII rule 11

 

Provisions of Order VII rule 11 of the Code of Civil Procedure are not attracted by mere submissions that the joint holding had been separated prior to the transaction in question and that the pre-emptor petitioner did not have any cause of action or locus standi to maintain the application for pre-emption as the case land had already been re-conveyed to the previous owner. Such case is to be proved by the pre-emptee opposite party by adducing evidence.

 

Shafique Uddin Ahmed (Md) vs Abdur Rashid & others 7 BLC 255.

 

Order VII rule 11

 

So far as the pre­emption case is concerned, it is treated neither as a suit nor its application can be treated as a plaint of the suit and hence the question of passing any rejection order on such application under Order VII, rule 11 of the Code does not arise at all.

 

Shafique Uddin Ahmed (Md) vs Abdur Rashid & others 7 BLC 255.

 

Order VII rule 11

 

If the conditions contained in rule 11 of Order VII of the Code are not applicable recourse cannot be taken to section 151 for the purpose of evading or circumventing the conditions laid down therein. Recourse to section 151 for rejection of a plaint can be resorted to in exceptional cases where if the suit is allowed to continue it would amount to an abuse of the process of the Court or in cases where the plaint was signed by a person not authorised to sign the same and the plaintiff did not remedy the defect when called upon to do so. Defendant having failed to make out such a case the Court below rightly did not resort to section 151 for rejecting the plaint.

 

Aminur Rahman Khan vs Trade Aris Insurance 7 BLC 330.

 

Order VII rule 11

 

In a suit for partition the petitioner filed an application under Order VII, Rule 11 of the Code of Civil Procedure for rejection of plaint on certain allegations. Learned Subordinate Judge without disposing the said application directed the petitioner to file written statement which is neither legal nor proper. Accordingly, learned Subordinate Judge was directed to dispose of the said application on its own merit before proceeding with the suit.

 

Moyez Uddin (Md) and ors vs Md Ahizuddin Mondal 7 BLC 583.

 

Order VII rule 11

 

Notice as required under section 152 of the Pourashava Ordinance having not been served by the plaintiff before filing of the suit it is barred under section 152 of the Pourashava Ordinance. When the suit was instituted at that time the Pourashava was in existence. On a perusal of the plaint it appears that the plaintiff has not acquired any legal character to institute the suit. Plaintiff was not even selected for the post of Vaccinator rather, she was selected only in the written examination. Hence, the plaint is rejected.

 

Zakia Sultana vs Maksuda Parvin and others 8 BLC 168.

 

Order VII rule 11

 

The plaintiff-appellants without making the remedies available to them challenged the Tightness of the judgment and decree in a suit before a court of ordinary civil jurisdiction. The suit, thus is eminently barred by law justifying rejection of plaint.

 

Delwar Hossain and others vs Janata Bank and others 8 BLC 411.

 

Order VII rule 11

 

Had the High Court Division read the plaint in its entirety, then there would have been no reason for the High Court Division to hold that the plaint did not disclose any cause of action.

 

Sunder Ali and others vs Md Serajul Islam Sarker and others 9 BLC (AD) 244.

 

Order VII rule 11

 

Suit filed by plaintiff-appellants for a declaration that first-defendant respondent is unsound is absolutely misconceived and there could not be any sort of cause of action in respect of declaration sought. The plaint, thus, manifestly appears to be barred by law from the statement made in the plaint. Law is well settled that in the interest of justice if the plaint cannot be rejected under any of the provisions contained in Order VII, rule 11, of the Code then the inherent power of court envisaged under section 151 of the Code can be very much pressed into service in burying the suit at the threshold. While dismissing the appeal the High Court Division awarded a cost of Taka 5,000 upon the plaintiffs-appellants for their blameworthy conduct.

 

Rupban Bibi and others vs Abdul Majid and others 9 BLC 320.

 

Order VII rule 11

 

The proceeding initiated under section 96 of the SAT Act is a summary one. Such application for pre­emption can never be termed as a plaint. Further taking evidence upon such application for deciding the consideration of the transfer is serious abuse of the process of the Court. Without disposing of the case finally, learned Assistant Judge entertained a misconceived application and thereby wasted time and energy not only of the parties but also of the Court. Learned District Judge has correctly approached the issues involved and set aside the order of the trial Court which calls for no interference.

 

Abdul Hamid Gazi (Md) vs Md Shamsul Hacjue and ors 9 BLC 458.

 

Order VII rule 11

 

In a pre-emption case the pre-emptee filed an application under Order VII, rule 11 of the Code for rejection of plaint on the ground that the pre-emptor failed to make statutory deposit according to consideration money of the kabala in question which was heard by the trial Court and examined the witnesses and directed the pre-emptor to deposit the balance amount. Before final disposal of the case, the entertainment of such an application under Order VII, rule 11 read with section 151 of the Code and the decision thereunder is a misconceived one.

 

Abdul Haque Gazi vs Shamsul Haque and others 9 BLC 600.

 

Order VII rule 11

 

The defendant never denied to execute and register necessary deed of sale on receipt of balance of the consideration. She was all through pressing for the balance money in Court. The plaintiff clearly exposed himself to be not ready and willing for enforcement of the agreement. In a suit for enforcement of a cpntract, the plaintiff has no right to question the title and possession of the defendant. Whenever the plaintiff raises the question about title or possession of the defendant the cause of action for the suit goes and it is not subsisting. The plaint was rightly rejected by the learned Subordinate Judge as there was no cause of action for the suit.

 

ABM Shamsuddin vs Anwara Begum and ors 9 BLC 630.

 

Order VII rule 11

 

In deciding the question as to whether a plaint is liable to be rejected the Court is always required to peruse the plaint only and Court is not permitted to travel beyond the plaint to dig out grounds to reject the plaint which is a settled principle of law as has been rightly found by the High Court Division.

 

Bangladesh Jatiya Samabaya Shilpa Samity Ltd vs Shan Hosiery, Proprietor Md Abu Taleb and others 10 BLC (AD) 8.

 

Order VII, rule 11

 

Transfer of a property to meet expenditure of marriage of sister does hot construe usufructuary mortgage as contemplated under section 6 of the said Act. From the provision of section 6 as mentioned above, it further appears that, if any building, (^ailsjva) is situated on the land in question section 6 of the Act cannot be invoked.

 

Akkas, Ali Biswas (Md) vs Ashit Kumar Mojumder 10 BLC (AD) 53.

 

Order VII, rule 11

 

In a suit for a declaration of title and confirmation of possession and injunction the defendant No. 1 filed an application under Order VII, rule 11, CPC which was rejected by the impugned order. Since sections 61 and 79 of the Banking Companies Act postulate that the power of the High Court Division to decide all claims in respect of bank companies and High Court Division has got the exclusive jurisdiction to" entertain and decide on the cases whether such cases have arisen before or after the date of the order of the winding up of the bank company or before or after commencement of the Banking Companies Act, the impugned order was set aside.

 

Pioneer Bank Ltd vs Md. Haris AH and others 10 BLC 672.

 

Order VII rule 11 & Order XIV rule 2

 

On 15-4-92 the defendants filed an application under Order VII rule 11 and Order XIV rule 2 of the Code of Civil Procedure for dismissing the suit on the ground that the suit building having been included in the 'Ka' list the suit was not maintainable under section 6 of the Ordinance No. LIV of 1985. The original suit itself became not maintainable because the Ordinance provided that enlistment of the building was conclusive evidence of its being an abandoned property. The suit was thus rightly dismissed.

 

Siruj-ud Dowla vs Government of the People's Republic of Bangladesh & others 6 BLC (AD) 90.

 

Order VIII, rule 1

 

It appears that in the absence of cross-examination of the PW and in the absence of contrary being proved by the defendants and in the absence of any legal pleadings having been made by any of the defendants, there is no case on the side of the defendants before the Court.

 

Nazrul Islam (Md) vs MM Moqbul Hossain and others 10 BLC 319.

 

Order VIII rules 1 and 2

 

The publication of notice of a suit filed, in representative character is mandatory in nature because the people of the concerned locality must be made aware of the said suit so that they can get an opportunity to protect their own right and interest. But sub-rule 1 of Rule 8 does not in any way impose any legal impediment on the operation of sub-rule 2.

 

Siddique Mia vs Habibur,Rahman and others 6 BLC 109.

 

Order VIII rule 3

 

It is a cardinal principle of law that material facts must be stated by the parties either in offence or in defence. If a party omits to state a material fact in his pleading, he will not be allowed to lead evidence of that fact at the trial unless the pleading is lawfully amended. Even if, evidence is given on such facts, such evidence must be kept out of the consideration of the Court. Even an argument involving a question of fact which has not been pleaded by the party concerned cannot be allowed at the stage of argument. In spite of clear assertion in the plaint about the written acknowledgments by the defendants, the contesting defendants have not refuted these facts in their written statement as a result of which these assertions of the plaintiff stand admitted according to the law of pleadings.

 

Reliable Jute Traders and another vs Sonali Bank and others 7 BLC 16.

 

Order VIII rule 6

 

Order VIII rule 6 of the Code contemplates a defendant to put up a plea of set off, which requires payment of ad valorem Court fee under the Court Fees Act, if a defendant wishes to whittle or thwart the plaintiff's claim on the ground that the plaintiff also owes him money. It is as clear as broad daylight from the pleadings and the evidence that the defendant-appellant's case can, by no stretch of imagination, be encapsulated within the principle of adjustment as has been enunciated in the decision of the Apex Courts.

 

 Pubali Bank Ltd and others vs Kabir Ahmed Chowdhury 8 BLC 706.

 

Order IX, rule 4

 

Restoration of the title suit to its original file and number was not allowed only on the ground that in the petition the number of original suit and the date of disposal of the suit were not mentioned but it appears from the application for restoration that the case humber of the title suit has been mentioned in the cause title and the date of disposal has been mentioned in the prayer portion and hence the impugned judgment and order is set aside and the suit is restored to its-origial file and number.

 

Taraf AH & another vs Chowdhury- Thanvir Ahmed Siddiqui & another 249.

 

Order IX, rule 4

 

An application under section 151 of the Code for restoration of the suit to its file and number was filed on the date on which it was dismissed for default whereupon the learned Assistant Judge by exercising his inherent powers restored the suit to its own file and number and thereby he committed no illegality in spite of not following specific provision of law as provided under Order IX, rule 4 of the Code.

 

Amiya Bala Debi vs Jafar Chowdhury and others 10 BLC 144.

 

Order IX rule 9

 

Being unsuccessful in restoring the pre-emption case filed under section 96 of the State Acquisition and tenancy Act the Pre-emptor preferred an appeal under Order XLIII, rule l(c) of the Code which was allowed by the learned Subordinate Judge in the impugned order. It is the view of our Appellate Division that no appeal lies against an order dissmissing an application made under Order IX, rule 13 of the Code for restoration of a proceeding under section 96 of the State Acquisition and Tenancy Act and such view shall apply equally to an application laid under Order IX, rule 9 of the Code for restoring a pre­emption case to its file and number. Thus, the Miscellaneous Appeal preferred before the District Judge was not tenable in law.

 

Haripada Mandal vs Bidhan Chandra Mondal 8 BLC 155.

 

Order IX rule 13

 

The Miscellaneous Case was filed for setting aside the ex parte decree on the grounds that neither summons of the suit had been served upon her nor did she enter appearance nor did execute any Vokalatnama nor did file any written statement in the suit. Miscellaneous Case was filed well within time from the date of knowledge. All these questions can be decided at the time of final hearing of the Miscellaneous Case on production of evidence from both the sides and, as such, the question of striking off or expunging of the Miscellaneous Case on the very day of presentation and registration of the Miscellaneous Case does not arise at all.

 

Abu Mohammad Yousuf vs Basiran Nessa and others 6 BLC 163.

 

Order IX rule 13

 

When it is the duty of a Court not to pass any order behind the back of a party which would adversely affect such party and the Court is also obliged to correct its own default, if any, by invoking its inherent power, both the Courts below erred in law resulting in an error in the decision occasioning failure of justice in holding that the delay in making the application under Order IX, rule 13 of the Code could not be condoned in the absence of an application under section 5 of the Limitation Act.

 

Habibur Rahman & others (Md) vs MA Rashid and others 6 BLC 594.

 

Order IX rule 13

 

It appears that the learned Joint District Judge on assessment of evidence on record found that the petitioners' application under Order IX, rule 13 was barred by limitation and could not prove the fact of her illness. The High Court Division after considering the facts and circumstances of the case and the decision placed before them rightly held that without examination of doctor the medical certificate granted by him regarding illness is inadmissible in evidence.

 

Anwara Begum and others vs Shah Newaj 8 BLC (AD) 160.

 

Order IX rule 13

 

Sub-section 12 of section 96 of the State Acquisition and Tenancy Act provides for an appeal against any order passed under section 96 of the said Act. On the strength of section 141 of the Code of Civil Procedure other remedies contemplated in the Code are, also, available to a party aggrieved in a proceeding under section 96 of the said Act. In the matter of setting aside an order passed ex parte the pre-emptee, against whom ex parte order had been passed, can pursue an appeal under .section 96(12) of the State Acquisition and Tenancy Act as well as lay petition under Order IX, rule 13 of the Code of Civil Procedure and, also, a Review under Order XLVII, Rule 1 of the Code.

 

Ismail Hossain Biswas (Md) vs Rahima Khatun and others 8 BLC 144.

 

Order IX rule 13

 

Under the Ain of 1990 two remedies were available to judgment debtor plaintiff-appellant. One, a petition under Order IX, rule 1.3 of the Code of Civil Procedure and the other, an appeal before the High Court Division. In both deposit of half of decretal amount was a positive requirement and mandate. The plaintiff-appellants without making the remedies available to them challenged the Tightness of the judgment and decree in a suit before a court of ordinary civil jurisdiction. The suit, thus is eminently barred by law justifying rejection of plaint.

 

Delwar Hossain & ors vs Janata Bank & ors 8 BLC 411.

 

Order IX rule 13

 

The statements made in the plaint of the subsequent suit in support of prayer 'Ka' are struck:out and consequently, the matter (s) that was. the subject matter of the previous suit shall not be the subject matter of the subsequent suit and shall also not be a subject matter for adjudication in the subsequent suit.

 

Rasheda Begum vs MM Nurussafa and others 9 BLC (AD) 223.

 

Order IX rule 13

 

The findings of the High Court Division that the petitioner could not prove that he was prevented by sufficient cause from appearing when the suit was taken up for hearing and decreed ex parte are based on correct assessment of the materials on record.

 

Abdul Hai and others vs Atar Islam and others 9 BLC (AD) 254.

 

Order IX rule 13

 

An application for setting aside ex parte decree was filed whereupon a Miscellaneous case was registered and during the pendency of the case the ex parte decree was put into execution. Accordingly, an application for staying the proceeding of the execution case was filed arid the same was rejected by the impugned order. The executing Court failed to exercise its jurisdiction and thereby erroneously rejected the prayer for stay.

 

Ishak Mia (Md) vs Rangichara Tea Garden and another 9 BLC 58.

 

Order IX rule 13

 

On 1-4-92 there was no provision for filing a Miscellaneous Case under Order IX, rule 13, CPC in the original Artha Rin Adalat Ain. The judgment and decree passed ex parte on 19-2-92 could not be set aside by filing a Miscellaneous Case under Order IX, rule 13, CPC as the said provision was not available at the relevant time to the judgment-debtor. The amending provision of the Artha Rin Adalat providing the provision of Order IX, rule 13, CPC came into force on 17-7-92. In such facts the Miscellaneous case filed under Order IX, rule 13, CPC was not entertainable and accordingly, present appeal j is not maintainable.

 

 Ramizuddin vs Pubali Bank Ltd & anothers 9 BLC 201.

 

Order IX rule 13

 

Under Order IXrtrie 13 of the Code of trial Court has got jurisdiction to set aside a decree passed ex parte but such discretion could only be exercised on either of the grounds, namely, (a) summons was not duly served or (b) absentee" defendant was prevented by sufficient cause from appearing when the suit was called on hearing. In the absence of such findings, the trial Court has got no jurisdiction to set aside an ex parte decree. The learned Joint District Judge allowed the application on the view that it was reasonable to give them opportunity to contest without giving any reasons and he also could not say that the summons was not served upon them and, as such, the exercise of discretion by the learned judge resulted in serious indiscretion and, as such, the impugned order is set aside.

 

Asia Bewa and others vs Md Bachchu Fakir and am 9 BLC 411.

 

Order IX, rule 13

 

None of the essential conditions of rule 13 of Order IX of the Code having been met, the trial Court committed an error in passing the impugned order setting aside the ex parte decree allowing his application filed under Order IX, rule 13 of the said Code and I restoring the SCC Suit No. 3 of 97 resulting in an error in the decision occasioning failure of justice and, as such, the same is liable to be set aside.

 

Shahjahan Miah (Md) vs Md Mustaque Hossain & another 10 BLC 118.

 

Order IX, rule 13

 

It is not disputed that by gazette notification dated 20-2-1950 the total area of CS Plot No. 533 (suit plot) i.e. 2.30 acres of Mouza-Tejkunipara, PS Tejgaon, District-Dhaka along with other lands were acquired by the Government The learned Attorney-General further submitted that although the plaintiff cleverly sought declaration of title over the entire 2.30 acres of land of the suit plot but that will not bring the suit out of the mischief of section 14A of the Act. Since there are some patent incongruities in the plaint of Title Suit No. 208 of 1994 brought by the plaintiff Shamirunnessa Bibi the ex parte decree dated 12-12-1984 ex facie is not sustainable.

 

Bangladesh, represented by the DC, Dhaka and others vs Shamirunnessa Bibi & others 10 BLC (AD) 123.

 

Order IX, rule 13

 

The petitioners in support of their case for setting aside the ex parte decree totally failed to establish that summons was not served on the defendants or the defendants were prevented by sufficient cause from appearing before the Court when the case was taken up for hearing. In that state of the matter the learned Subordinate Judge was totally in error in setting aside the ex parte decree and consequently, the High Court Division has not committed any error or illegality in setting aside the erroneous order of the Court below.

 

Government of Bangladesh vs Sunil 'Kumar Khan 10 BLC (AD) 153.

 

Order IX, rules 13 and 14

 

Notice as contemplated under Rule 14 of the Order IX of the Code is required to be served only upon those opposite party or parties who figured as plaintiff or plaintiffs who had been graced with a decree. Plaintiffs-decree-holders were only the opposite parties upon whom notices are required to be served and other defendants-opposite parties who were not plaintiffs-decree-holders and not beneficiaries of decree are not required to be served with notices. Decision rendered and conclusion reached by learned Assistant Judge in dispensing with service of notices upon defendants-opposite parties do neither appear to have suffered from any illegality, legal infirmity and error of law nor any failure of justice seem to have been occasioned.

 

A Gani and others vs Abdul Jabbar Kha & ors 8 BLC 33.

 

Order XI, rule 2

 

At no stage the Government raised the plea that the suit was barred in the absence of consequential relief. There is a distinction between consequential relief under section 42 of the Specific Relief Act and the substantive relief as defined in Order XI, rule 2 of the Code of Civil Procedure. The respondent has not abandoned any substantive relief in earlier suit. But what would happen if the Government ignored the declaration in respect of the suit land. The answer is the plaintiff can bring a fresh suit for possession, or he can bring a contempt proceeding.

 

Sena Kalyan Sangstha vs Haji Sufi Fazal Ahmed and ors 10 BLC (AD)198.

 

Order XI rule 2

 

The Order XI, rule 2 of the Code of Civil Procedure applies only in the case of a suit. The proceeding under section 43 of the Companies Act, 1994 is a special proceeding under a statutory jurisdiction and is not a proceeding in the nature of a suit as contemplated under section 9 of the Code of Civil Procedure. Therefore, the provisions of Order XI, rule 2 of the Code of Civil Procedure has no manner of application in the facts and circumstances of the present case. The Court below has rightly passed the impugned order to the effect that the suit is not barred by any law and the same shall proceed in accordance with the law.

 

Dhaka Stock Exchange Ltd and others vs Motiur Rahman 7 BLC 150.

 

Order XI rule 7

 

The statements made in the plaint of the subsequent suit in support of prayer 'Ka' are struck out and consequently, the matter (s) that was the subject matter of the previous suit shall not be the subject matter of the subsequent suit and shall also not be a subject matter for adjudication in the subsequent suit.

 

Rasheda Begum vs MM Nurussafa and others 9 BLC (AD) 223.

 

Order XIV rule 3

 

Neither any issue was framed nor any decision was arrived at on the point of improvement of the case land or on the point as to whether it was a case of waiver or acquiescence by trial Court as pleaded by the pre-emptees. Section 96(3)(b) of the State Acquisition and Tenancy Act contemplates an enquiry as to the actual amount of expenses incurred by the pre-emptee for the purpose of improvement as claimed which has not been complied with by the trial Court. It further appears that those findings have not been based on any reasoning, arrived from assessment of evidence on record as contemplated by the mandatory provision of rule 4(2) of Order XX of the Code of Civil Procedure.

 

Mozibar Rahman Molla (Md) vs Md Rehazuddin 8 BLC 479.

 

Order XX rule 4(2)

 

Although it is a judgment of affirmance based on concurrent finding of facts yet those findings being devoid of any reasoning deriving on assessment of evidence on record, those are not at all binding on the revisional Court since the said findings cannot but be termed as perverse. The provisions of rule 4(2) of Order XX of the Code of Civil Procedure is a guideline, mandatory for both the trial Court and the appellate Court as well. Ends of justice would be met if the case is sent back on remand to the trial Court for passing a judgment in compliance with rule 4(2) of Order XX of the Code of Civil Procedure.

 

Mozibar Rahman Molla (Md) & another vs Md Rehazuddin and ors 8 BLC 479.

 

Order XX rale 4(2)

 

Neither any issue was framed nor any decision was arrived at on the point of improvement of the case land or on the point as to whether it was a case of waiver or acquiescence by trial Court as pleaded by the pre-emptees. Section 96(3)(b) of the State Acquisition and Tenancy Act contemplates an enquiry as to the actual amount of expenses incurred by the pre-emptee for the purpose of improvement as claimed which has not been complied with by the trial Court. It further appears that those findings have not been based on any reasoning, arrived from assessment of evidence on record as contemplated by the mandatory provision of rule 4(2) of Order XX of the Code of Civil Procedure.

 

Mozibar Rahman Molla (Md) & am vs Md Rehazuddin and ors 8 BLC 479.

 

Order XXI rule 22

 

The executing court acted beyond its jurisdiction in issuing the notices upon the judgment debtors inasmuch as the Court is not required to issue such notice as the decree execution case has been laid within three months from the date of the decree and hence the executing court has committed an error of law occasioning failure of justice in passing the impugned order.

 

Jahanura Begum and others vs MD, Rupali Bank and others 6 BLC 107.

 

Order XXI rule 29

 

An application for setting aside ex parte decree was filed whereupon a Miscellaneous case was registered and during the pendency of the case the ex parte decree was put into execution. Accordingly, an application for staying the proceeding of the execution case was filed and the same was rejected by the impugned order. The executing Court failed to exercise its jurisdiction and thereby erroneously rejected the prayer for stay.

 

Ishak Mia (Md) vs Rangichara Tea Garden and another 9 BLC 58.

 

Order XXI rules 29 and 99

 

No litigant got a right to unlimited drought on court's time and public money in order to get his affairs settled in the way he likes. The executing court got no power even by exercising the inherent power to order stay of execution where the suit is against decree- holder filed by a third party.

 

Rotish Chandra Das vs Sudhir Chandra and anr 6 BLC 296.

 

Order XXI rule 52

 

In effecting a valid attachment in respect of the fixed deposit it was necessary to issue a prior notice under rule 52 of Order XXI of the Code as the notice is a condition precedent to the order of attachment. In the absence of such statutory notice the communication of the order dated 22-7-89 of the Subordinate Judge to the Commercial Court No. 1 is not sanctioned by the Rule.

 

Hanif (Md) vs Agrani Bank and another 6 BLC 43.

 

Order XXI rule 54

 

In a pre-emption case when the case holding does not appear to be a mortgaged property or charged for mortgage sale, such holding, even, if sold in execution of any money decree in any money execution proceeding, any alienation by the judgment-debtor does not come within the purview of the doctrine of lis pendens in the absence of the proof of service of notice under Order XXI, rule 54 of the Code upon the alienor or the alienee as the case may be.

 

Badiul Alam being dead his heir Fazlul Karim vs Md Nurul Islam 8 BLC 30.

 

Order XXL rule 58

 

In the instant case it is apparent that on 19-8-89 when the Miscellaneous case was filed there was no existence of any attachment, the concerned vessel had already been sold in auction and was physically handed over to the decree-holder-auction-purchaser and hence the Miscellaneous case filed under Order XXI, rule 58 of the Code praying for release of the trawler in question from attachment was misconceived, was not maintainable and was liable to be rejected.

 

AK Khan and Co Ltd vs Zanak Enterprise 9 BLC 90.

 

Order XXI rule 58

 

It appears that the petitioner's brother was in default in the repayment of the loan amount before he made the transfer of the property to his sister. Sonjoy Kumar Fodder obtained the loan having given a personal guarantee and by creating charge documents, and as such, his property would have been liable to attachment and, on the face of it, it appears that he disposed of the property in order to keep the same away from the clutches of his creditors. The learned trial Judge has alsq found it to be admitted that the whole of his family have left for India. Such mass family exodus has also been rightly taken into consideration by the learned Judge. The petitioner has not come with clean hands as the transaction by way of gift was clearly made with a view to depriving the creditor's access to the property. The provisions of Order XXXVIII, rules 7 and 8 of the Code relate back to the provisions of Order XXI of the Code and would, therefore, entail an application by the petitioner under Order XXI, rule 58 of the Code. The remedy being open to the petitioner under the Code of Civil Procedure, any application under the writ jurisdiction is not maintainable. Moreso, the transaction from which the petitioner seeks to benefit, that is the gift, appears ex facie to be tainted by fraud upon creditors and hence she is not entitled to get equitable relief under the writ jurisdiction.

 

Nitu Poddar vs Eastern Bunk Ltd and am 9 BLC 209.

 

Order XXI, rule 58

 

Some important facts were not stated and those were suppressed and by such suppression of facts present opposite party No. 1 disentitles himself to continue with an order of stay and, as such, the application for vacating the order of stay is allowed and the stay granted at the time of issuance of Rule stands vacated and the execution proceeding will proceed in accordance with law.

 

Babul Miah vs Md Din Islam and others 10 BLC 89.

 

Order XXI, rules 64 and 82

 

Admiralty action is an action in rem as well as in personem. Secondly, it brooks no controversy that the Admiralty suits are not governed by the provisions of the Code rather they are governed by the Admiralty Court Rules and the Admiralty Court Rules appear to be complete for the purpose of regulating the proceedings in suits brought before the Admiralty Court. So, the question of applying Rule 82 to onwards of Order XXI of the Code does not arise at all in the instant case.

 

Sonali Bank vs Bengal Liner Ltd and others 10 BLC 148.

 

Order XXI, rule 90

 

An execution proceeding or a Miscellaneous proceeding arising out of execution proceeding cannot be suggested to be a Bicharadhin (KmYJrJiLj) case or suit. The Ain of 1990 is a special statute and right created by statute prescribes manner of enforcing it. Party can seek to enforce that right as provided in the statute itself and not in any other mode nor in any other law. The petition for transfer has been presented under section 24 of the Code and not under section 5(3). Petition under section 24 of the Code was misconceived and learned District Judge, also, failed to take into stock' this legal aspect of the matter. Judgment-debtor filed Miscellaneous case under Order XXI, rule 90 of the Code for setting aside the auction sale in the Artha Rin Adalat, who passed the preliminary decree and final decree. It was the absolute jurisdiction and competency of that Adalat to adjudicate and dispose of the said Miscellaneous case and not by any other Artha Rin Adalat as mandated by section 5(1) of the Ain of 1990.

 

Standard Chartered Bank vs. Farook Paints and Varnish Manufacturing Company Ltd 10 BLC 414.

 

Order XXI rules 100 and 101

 

After hearing both the parties the trial Court ordered to put the third party into possession within 7 days which is challenged before the High Court Division in revision. It appears that many people were in possession of the property by erecting houses but the plaintiff did not implead them as parties nor did he ask for possession after evicting them. The defendant who entered into an agreement for sale had no possession as evidenced from the record and hence there is nothing to interfere with the decision of the trial Court.

 

Mahmuda Khan vs Abdul Wadud Mollick 6 BLC 41.

 

Order XXII rule 3

 

In the suit for enforcement of the plaintiff's personal service right the plaintiff died during the pendency of appeal and the appeal being the continuation of the proceeding the plaintiff could not be substituted but surprisingly the plaintiff was substituted by his widow and two minor child by the Court of appeal below. Considering the facts and circumstances of the case it appears that the entire proceeding initiated by plaintiff has abated on his death.

 

Rabindra Nath Boss and others vs Krishna 'Bain and others 8 BLC 47.

 

Order XXII rule 4

 

By the impugned order the High Court Division refused the prayer for substitution on the view that Md Rhalilur Rahman Biswas was not dead. Similar application was also rejected subsequently. The Appellate Division disposed of the appeals with a direction to the High Court Division to investigate the matter and find out the truth of the assertions made by the parties.

 

Komela Begum and others vs ADC (Revenue) and ors 6 BLC (AD) 120.

 

Order XXII rule 4

 

Without substituting the heirs of the deceased, respondent 1, the appellant filed an application for adding his heirs in his place which was allowed in spite of objection.

 

Suruj Miah vs Yakub AH and others 6 BLC 317.

 

Order XXII, rule 10

 

The undisputed position in law is that plaintiff cannot have a relief against a person who is not a party in the suit. Provision of Order XXII, rule 10 of the Code of Civil Procedure provides for continuation of a suit in the background of the situation given therein i.e. assignment, creation or devolution of any interest during. the pendency of the suit. In the instant case, none of the aforesaid situations are present and, as such, the said provision is of no assistance to the plaintiff-respondent in rebutting the contention of the appellants that the suit so far the same relates to validity of the deeds dated October 27, 1969 for non impleading the recipients of the said deeds is bad in law.

 

Abu Naser Md Wahidun Nabi vs Balai Roy 10 BLC (AD) 58.

 

Order XXIII rule 1

 

Although the appellate Court affirmed the decision given by the trial Court in respect of title and possession of the plaintiff in the suit land yet he dismissed the suit merely on the ground of limitation on misconception of the provision of law as embodied in both Article 122 of the Limitation Act as also of the expression used in Order XXIII, rule 1 of the Code of Civil Procedure.

 

Abdul Haque and another vs Shone AH alias Moulana Shamsul Haque and others 9 BLC 347.

 

Order XXIII rule 1(2)

 

Immediately after receipt of a copy of the written statement by the plaintiff an application for withdrawal of the suit was filed alleging that in the written statement it has been specifically pointed out that in the plaint there were certain defects and such defects cannot be cured by amendment of plaint which has been extensively quoted in the judgment of the High Court Division and hence in the absence of any legal infirmity no interference is called for.

 

'Imran Hossain Momin (Md) vs Md Amir Hossain and others 6 BLC (AD) 105.

 

Order XXVI rule 1

 

On perusal of the application for examination of the witnesses on commission it appears that neither any such ground as required under rule 1 of Order XXVI of the Code has been made out in the application nor the Election Tribunal gave any finding of its own or assigned any reason whatsoever as required thereunder. The impugned order is liable to be set aside. But instead of issuing any Rule the application was allowed summarily.

 

Kamaluddin Chow­dhury (Md) vs Md Anowarul Azim and others 9 BLC 667.

 

Order XXVI, rule 9

 

From the statements made in the application for local investigation it appears that the whole grievance of the plaintiff is that the defendant has made construction on the suit land by violating the order of injunction, if that be so, his remedy is otherwise and if so advised he may take appropriate step in that aspect under appropriate law, but for that matter there cannot be any local investigation as has been prayed for. So far as the submission of Mr Lutfur Rahman as to the obtaining of Rule on the point of local inspection although the court below allowed the prayer for local investigation is concerned but the High Court Division is of the view that High Court Division while disposing of a matter can correct a mistake suo moto.

 

Abdus Sattar and ors vs Md Ali Hossain Wmihan.W-.BLC 711.

 

Order XXVI, rule 9

 

During the pendency of the suit for specific performance of contract the petitioner as plaintiff filed an application under Order XXVI, rule 9 of the Code for ascertaining the exact position of the suit land by investigating the same by an Advocate Commissioner as the suit land was not partitioned by metes and bounds which was rejected by the impugned order. In view of such circumstances the trial Court has not exercised his discretion judiciously and accordingly, the Rule is made absolute.

 

Habibullah Chowdhury (Md) vs Md Ibrahim and others 10 BLC 146.

 

Order XXVI rule 9

 

The rules of procedure are clearly not intended to allow a litigant who had been unsuccessful in the lower court to patch up the weak parts of his case and fill up the omissions in the. revisional court sending the case on remand for holding local investigation.

 

Sabur Ali (Md) and others vs Latif Khan and others 6 BLC (AD) 62.

 

Order XXVI rule 9

 

In view of the statement made in the written statement raising the question of identity of the suit land necessitating the filing of an application for local inspection to be conducted by an Advocate Commissioner it has become necessary to ascertain whether or not the land described in the deeds as stated in the plaint attract the suit land.

 

Golam Sarwar Chowdhury vs Bangladesh 7 BLC 397.

 

Order XXVI rule 13

 

In a suit for partition, which undoubtly remains pending till the final decree is passed and signed, whatever may be the claim and counter-claim between the parties raised on the basis of registered documents should be decided by the trial Court by adjusting and modifying the preliminary decree and accordingly the Advocate Commissioner should be directed to work out the preliminary decree to make it final. Trial Court will decide such dispute as to objection of the plaintiffs that they have not made the disputed sales and whether the documents are forged and fabricated so that the claim and counter claim of the parties in respect of transfers made, before or after preliminary decree can be made allowing the parties to prove there documents by adducing evidence, if any.

 

Panna Bibi and ors vs Rebeka Khatun and others 8 BLC 246.

 

Order XXVI rule 14

 

Delivery of specific sahams to the contending parties by the Advocate Commissioner is an inseparable part of the compromise decree and it cannot be said that the learned Assistant Judge was left with no further power to give effect to the agreed terms of the compromise decree and such objection cannot be raised for the first time in civil revisional jurisdiction. When registered notices were served upon the parties by the Advocate Commissioner before holding the Commission, the plea that the Advocate Commissioner effected delivery of possession in the absence of the petitioner cannot be entertained.

 

Fazlul Hacjue vs Hazrat Ali Sikder 6 BLC 592.

 

Order XXX, rule 1

 

Plaintiff having laid the suit impleading^the Managing Partner of the registered partnership firm and the partnership firm itself, the suit is quite maintainable in view of the provision of Order XXX, rule 1 of the Code. It can in no way be said that the suit as framed is not maintainable because of non-impleading heirs of Abdul Motalib since the partnership firm, which is a registered one and its managing partners are parties in the suit.

 

Bulbul Begum vs Md Sanwar Belaland another 8 BLC (AD) 97.

 

Order XXXIV rule 11

 

In view of the unusual horrible abnormal situation prevailing all over the country during the days of liberation war in 1971 and that the plaintiff had no control over the situation in which the loss of the pledged jute-took place and that the defendants also suffered heavy loss in their business and other properties during these days, the defendants are exempted from making payment of any interest on the principal sum of Taka 75,000 but the interest on the decretal amount of Taka . 75,000 will be assessed at the rate of 15% per annum from. today till realisation.

 

Reliable Jute Traders and another vs Sonali Bank and others 7 BLC 16.

 

Order XXXVIII rule 5Letter of Credit —Attachment before judgment

 

The court, in fact, has no jurisdiction to pass an order of attachment before judgment against the proceeds of letters of credit payable to a supplier by a commercial bank for any alleged dispute between the buyer and the seller, and this principle has consistently been followed in respect of international commercial transaction under the International Banking Rules.

 

Chartkar International Holding Ltd and another vs Gooryong (BD) Textile Ltd and others 6 BLC 265.

 

Order XXXVIII rule 5

 

Nothing was shown as to whether there is any obstruction or delay in execution of eventual decree, the plaintiff petitioner is not entitled to get an order of attachment of the vessel before judgment. In the facts and circumstances of the case, the parties may resolve their problem by taking recourse to an appropriate forum which is recognised in private International Law and the application under Order XXXVIII Rule 5, CPC is inapplicable. The bank guarantee given in Court has no manner of application in this particular case and the trial Court is directed to return the bank guarantee in favour of the learned Advocate concerned.

 

Mafuzul Haque (Md) vs Precious Shipping Public Co Ltd and ors 9 BLC 395.

 

Order XXXVIII, rule 5

 

In absence of any requirement being satisfied before the Court or there being any allegation as to delay and to leave the port of Bangladesh with the intent to obstruct or delay the execution of an eventual decree the High Court Division did not find any reason for making the impugned order by the learned Subordinate judge. It also appears that the learned Subordinate Judge has not issued any show cause notice as to why the defendant should not furnish any security nor it directed the defendant to furnish security as prescribed under rule 5(1) of Order XXXVIII, CPC. Thus the High Court Division's unhesitating conclusion is that the order impugned before the Court is not made in compliance with the requirements of Order XXXVIII, rule 5 CPC and is liable to be struck down. Where the order of attachment was not made in terms of rule 5(1) and rule 6 of Order XXXVIII, CPC and the Bank Guarantee was offered pursuant to such an order the Bank Guarantee shall not continue to remain in force till the disposal of the suit.

 

Formentor Maritime Inc and another vs Transcontinental Imex, Inc 10 BLC 659.

 

Order XXXVIII, rules  5 and 6(1)

 

Considering the decisions of our Court the High Court Division rightly held that the order of attachment of the Subordinate Judge was not in terms of Rule 6(1) of Order XXXVIII, CPC as in the instant case there was nothing to show that the defendant had any intention to obstruct or delay the execution of an eventual decree which does not require to be interfered.

 

Transcontinental Imex, Inc vs Formentors Maritime Inc. and others 10 BLC (AD) 148.

 

Order XXXVIII rules 5(1), 7 and 8

 

The provisions of Order XXXVIII, rules 7 and 8 of the Code relate back to the provisions of Order XXI of the Code and would, therefore, entail an application by the petitioner under Order XXI, rule 58 of the Code. The remedy being open to the petitioner under the Code of Civil Procedure, any application under the writ jurisdiction is not maintainable. Moreso, the transaction from which the petitioner seeks to benefit, that is the gift, appears ex facie to be tainted by fraud upon creditors and hence she is not entitled to get equitable relief under the writ jurisdiction.

 

Nitu Poddar vs Eastern Bank Ltd and anr 9 BLC 209.

 

Order XXXIX rule 1

 

The Court of appeal has rightly found that the sebait had no authority to lease out the suit premises and the plaintiff had no locus standi to institute the suit and such finding remained unassailed. Both the Courts below exercised their discretion in not granting temporary injunction after applying judicial mind which cannot be interfered with.

 

Girindra Kumar Nath vs Bangladesh and others 8 BLC 253.

 

Order XXXIX rule 1

 

When the defendants are in lawful possession and making construction by spending valuable money, the balance of convenience and inconvenience is definitely against the plaintiffs and in favour of the defendants. Any order of restraint of any nature would harm the defendants severely. In view of presumption arising out of registration of sale deed conveying title in the suit land, the learned Joint District Judge fell in serious error in thinking that the plaintiffs have got an arguable case. The impugned order of status quo therefore cannot be sustained in law.

 

Golden Tower International Ltd and others vs Md Sazzad All and others 9 BLC 596.

 

Order XXXIX rules 1 and 2

 

There is no let or hindrance whatsoever in law that an organization training Judo cannot use the word Karate or vice versa. Plaintiff has at least no prima facie case for getting an order of temporary injunction where the question of irreparable injury and balance of convenience do not arise.

 

Bangladesh Karate Association vs- GS Bangladesh Judo Federation & others 6 BLC (AD) 104.

 

Order XXXIX rules 1 and 2

 

As the plaintiff was given lease of the suit property for a shorter period as of a licensee and the lease period had already expired and, as such, the plaintiff had ho subsisting legal right in the suit property to pray for injunction. Order XXXIX rules 1 and 2 of the Code did not empower the Court to grant permanent injunction when the plaintiff has no subsisting interest in the property in dispute.

 

Government of Bangladesh & others vs Paper Converting & Packaging Ltd & others 6 BLC 467.

 

Order  XXXIX  rules   1   and  2

 

Thepapers and documents prima facie show that the plaintiffs have been residing in their houses and buildings constructed on the suit land even adversely against the defendants on the strength of certain title deeds. Inquiry reports of the inquiry officers also show that the plaintiffs have been possessing the suit land. If the plaintiffs are evicted from the suit land they will suffer irreparable loss and injury and the defendants will not suffer any loss or injury. Balance of convenience and inconvenience is also in favour of the plaintiffs and hence the order of status quo will continue till the disposal of the suit. Defendants' contention is that the plaintiffs are none but trespassers. They might be trespassers but with some documents of title and the same will be decided in the trial. Continuous possession on the strength of however invalid title they are protected under law.

 

AKM Abul Kashem & others vs Kartik Chandra Shil 7 BLC 452.

 

Order  XXXIX  rules   1   and  2

 

No injunction in partition suit in case of land in urban areas—It has been admitted by the learned Advocate for the petitioner that the principle has now been settled that in case of land in urban areas there shall not be any injunction restraining construction by a co-sharer but he has argued that in the instant case, the plaintiff will be deprived of his due share and for that reason injunction should be issued against the respondents from making any construction till disposal of the partition suit.

 

, In view of the fact that the plaintiff purchased specific 12 decimals of land from RS plot No. 2702 with the boundary and demarcated in a separate holding and he is in actual possession of that 12 decimals of land, the High Court Division committed no illegality in dismissing the appeal by setting aside the order of granting injunction passed by the trial Court.

 

Nasir Uddin Howalder (Md) vs Abul Kalam and ors 8 BLC (AD) 156.

 

Order XXXIX  rules  1  and  2

 

The allegations that the complaint is the product of grouping amongst teachers and that the committee that has been constituted by the Vice Chancellor of the Rajshahi University to enquire into the alleged allegation of non-awarding standard marks would not work in a bonafide manner and that because of such grouping among the teachers, the members of the enquiry committee would not act fairly and that they would proceed with the enquiry actuated by the group interest and that the enquiry committee would not act in unbiased manner. Those being the allegations against the enquiry committee the High Court Division was quite correct in refusing to interfere with the order of the learned District Judge granting temporary injunction.

 

Rajshahi University and others vs Professor Moklesur Rahman and another 8 BLC (AD) 109.

 

Order XXXIX rules 1 and 2

 

When a proceeding has been initiated legally or illegally the petitioner may face the proceeding raising objection there. But initiation of the proceeding cannot by itself be a ground to pass an injunction as prayed for. The Courts below have not committed any illegality and wrong in dismissing the plaintiff's prayer for temporary injunction.

 

Haider AH Miah (Md) vs Islami Bank Bangladesh Ltd and others 8 BLC (AD)154.

 

Order XXXIX rules 1 & 2

 

Both the Courts below have concurrently found that the plaintiffs have no prima facie title and possession in the suit land when the appellate Court further found that the plaintiffs had never been in possession in the suit land at least during the last 60 years and that the learned Subordinate Judge was legally justified in passing the impugned order of temporary injunction restraining the plaintiff petitioners from entering into the suit land pending disposal of the suit. Moreso, the concurrent finding of facts is binding upon the High Court Division.

 

Shah Abdul Latif and others vs Government of Bangladesh 8 BLC 301.

 

Order XXXIX   rules 1 and 2

 

In the instant case, there is no dispute that the opposite parties No. 1 to 3 hurriedly undertook the construction works in the second schedule land without prior approval of the site by the Government as per established principles being followed. Such unauthorised works should not be allowed to be implemented on the basis of work order issued by the opposite party No. 2 in respact of the constructions of the permanent building of Kulaura Union Parishad wherein the interest of the inhabitants of the Union is involved.

 

 Shohag Mia (Md) and others vs Upazila Nirbahi Officer and others 8 BLC 343.

 

 

Order XXXIX rules 1 & 2

 

The order rejecting petition for temporary injunction squarely falls under Order XLIII, Rule l(r) of the Code and it is appealable and not revisable and Revision Petition before the High Court Division is not maintainable.

 

 NCCBL vs Prime Bank Limited and ors 8 BLC-391.

 

Order XXXIX rules 1 & 2

 

Credit documents had beer, accepted by the Petitioner Bank after examining the same without any objection within a period of one year/six months. Opposite party Bank as Negotiating effected payment to beneficiary opposite party Company. Plea of fraud had not been adopted by Petitioner Bank at the time of acceptance of Letter of Credit. Petitioner Bank slept and slept and woke up- at a very late stage. Petitioner Bank after acceptance of Credit documents cannot turn back and cannot decline to reimburse payment given to beneficiary opposite party Company by opposite party Bank on the plea of fraud. It is observed that relief by way of injunction is available to that litigant who is prompt and vigilant and not to him who is indolent and sleep and sleep over his right. Petitioner Bank slepts and slepts and then lately rose seeking relief in bringing forth complaint of fraud. It was too late in the day to wake, up and. rise in ventilating grievances as to genuineness of credit documents.

 

 NCCBL vs Prime Bank Limited and ors 8 BLC 391.

 

Order XXXIX rules 1 & 2

 

Grounds and factors relied upon by learned Joint District Judge in refusing injunction demonstrates that orders under challenge in both Civil Revision cases were in harmony of the legal standing in International Commercial Credit and Inter­national Banking Practice and very much in consonance with the settled principles of law regulating grant or refusal of injunction. Loss and damage on the part of the petitioner Bank in reimbursing payment to opposite party Bank can adequately be compensated in terms of money. No injunction can be granted for non-performance of contractual obligations or to interfere with normal Banking transaction nor for a loss which can be compensated in terms of money.

 

NCCBL vs Prime Bank Limited and ors 8 BLC 391

 

Order  XXXIX rules 1 and 2

 

The issuing Bank is bound to make payment under back to back LC on production of papers which on the face of it appears to be correct and the Court cannot grant injunction restraining such payment as the Bank deals in documents and not with the quality/quantity of goods shipped.

 

Standard Bank Ltd vs Tripos Engineering and Trading Company and others 9 BLC (AD) 262.

 

Order XXXIX rules 1 and 2

 

In urban area no co-sharer should be restrained by injunction from making construction. There could not be any second opinion to the authorities on the principle. But the principle cannot be extended to cover a case where very right to construction is based on a deed which is tainted by fraud as has been rightly found by the High Court Division. The said Division did not commit any error or illegality in finding that the plaintiffs have been able to prove the prima facie and arguable case and balance of convenience and inconvenience is in favour of the plaintiff and rightly directed to maintain status quo and to dispose of the suit in six months.

 

Hashem AH (Md) and anr vs Begum Nurjahan and ors 9 BLC (AD) 272.

 

Order XXXIX rules 1 and 2

 

Admittedly, in the instant case, the defendant-appellant No. 1 terminated the contract. The party who terminates the contract cannot rely on that contract containing the Arbitration clause. Section 34 of the Arbitration Act is attracted only when an agreement to refer to arbitration exists and he who wants to avail of this section must have to show that it exists. Section 59(2) of the Arbitration Act No. 1 of 2001 saves the operation of the old Act No. X of 1940. 'It appears that prima facie the learned Subordinate Judge, Dhaka has got the jurisdiction to entertain and try the suit on merit and so long as the suit is not thrown out as being not maintainable an application for temporary injunction can be maintained.

 

Bangladesh Limited and another vs Maxwell Engineering Works Ltd and anr 9 BLC 96.

 

Order XXXIX rules and 2

 

Mandatory Injunction can be granted under inherent power of the Court—The terms of provisions of Order XXXIX, Rules 1 and 2 of the Code do not appear to expressly authorise the exercise of power of granting interlocutory injunction in mandatory shape but the Court in the exercise of inherent power under section 151 got jurisdiction to issue a direction in mandatory form or to grant interlocutory mandatory injunction.

 

Mercantile Bank Limited, and others vs MS Ahsan 9BLC1.

 

Order XXXIX, rules 1 & 2

 

 The plaintiff and his predecessors has/had been running the Cinema Hall since 1943 and that without serving any notice to show cause the licence has been cancelled which is a clear violation of the principle of natural justice and the balance of convenience is in favour of the plaintiff rather than of the defendant as has been observed by the Appellate Court which calls for no interference.

 

Government of the People's Republic of Bangladesh and others vs Shamir Ghosh 10 BLC (AD) 12.

                           

Order XXXIX rule 3

 

Issuance of notice as contemplated in Rule 3 of the Order XXXIX of the Code is neither mandatory nor imperative in a petition for temporary injunction when petition stands rejected summarily by Court on latter's want of satisfaction as to existence of any case for injunction and summary rejection of petition for temporary injunction without issuance of notice is very much permitted by law.

 

NCCBL vs PB Landors 8 BLC 391.

 

Order XLI, rule 5

 

There is no prohibition upon the jurisdiction of the appellate Court to stay the operation of the judgment and decree passed by the Artha Rin Adalat exercising the jurisdiction under order XLI, rule 5 of the Code, the impugned judgment and decree passed by the Artha Rin Adalat is stayed till disposal of the first appeal pending in the High Court Division.

 

Wadud Optics & Co, and others vs Pubali Bank Ltd 7 BLC 134.

 

Order XLI rule 19

 

The amendment sought to be included in the application filed under Order XLI, rule 19 of the Code will not change the nature and character of the proceeding, rather it will enable the Court to determine the real question involved in the case.

 

Abdur Rahman & others vs Md Shamsul Huq and ors 6 BLC561.

 

Order XLI rule 19

 

Government explained satisfactorily the delay in filing the Miscellaneous case and accordingly the application made under Order XLI rule 19, CPC was allowed by the impugned order calls for no interference.

 

Abul Quasem and others vs Government of Bangladesh 6 BLC 259.

 

Order XLI rule 19

 

On a perusal of Order XL1II, rule l(t) read with section 106 of the Code, it is crystal clear that in the instant case the learned District Judge had no jurisdiction whatsoever to entertain the aforesaid Miscellaneous Appeal as well as the Review Miscellaneous case and as such the orders dated 6-9-94 and 25-5-96 passed in the Miscellaneous Appeal No. 39 of 1994 and Review Miscellaneous Case No. 358 of 1994 respectively are nullities and they have no existence in the eye of law and hence there is no scope to enter into the merits of the Rule. Accordingly, the Rule was discharged and the Miscellaneous Appeal No. 39 of 1994 was sent back to the learned District Judge for passing an order in accordance with law for presenting the same before the proper Court.

 

Abul Mansur '(Md) and ors vs Saha Chari Sarkar and others 8 BLC 298.

 

Order XLI rule 21

 

Service return shows that the appellant was not at Barisal at the relevant time, the service is no service in the eye of law in the absence of any written document authorising respondent 1 to act as her agent to receive any summon or notice and hence no agency is created and the appeal was disposed of ex-parte and it will be reheard.

 

Hosne Ara Jalil vs Abdur Rab and others 6 BLC 130.

 

Order XLI, rule 21

 

On perusal of the order book of FMA No. 42 of 1992 it clearly appears that there was no endorsement by the section as is always recorded to the effect that the appeal was in fact ready for hearing. The notice upon sole respondent returned unserved but it was not noted in the order book. Thus it is obvious that the appeal was heard and allowed ex parte on 2-11-1995 when the appeal was not made ready for hearing after due service of notice upon sole respondent, there was no legal scope for the Court to hold ex parte hearing and it attracts the provisions of Order XLI, rule 21 of the Code and the respondent-petitioner is entitled to rehearing of the appeal as provided under provision of Order XLI, rule 21 of the Code.

 

Amjad Hossain (Md) vs Bangladesh House Building Finance Corporation 10 BLC 429.

 

Order XLI rule 22

 

Although the trial Court decreed the suit but held that the prayer for specific performance of contract was barred by limitation. Against such finding the plaintiff did neither file any cross objection before the appellate Court nor prefer any appeal. Considering the materials on record the learned appellate Court came to the right conclusion that the prayer for specific performance of contract was barred by limitation.

 

Nargis Begum vs Ezaz Ahmed 8 BLC 24.

 

Order XLI rule 23

 

It appears that the original partition suit was filed in 1956 and then it was decreed and the appellate Court sent back the case on remand for fresh trial and additional written statement was allowed to be filed and the plaintiffs examined 3 witnesses before the remand and defendant also examined 2 witnesses but after remand no witness was examined from the side of the contesting defendant though hazira was filed on the date of trial, it is now too late to submit that the matter ought to have been sent back on remand to the trial Court.

 

Nurul Islam Palan and others vs Mohsin Palan and others 6 BLC (AD) 50.

 

Order XLI rule 27

 

Clause (b) of Rule 27(1) of Order XLI of the Code of Civil Procedure confers discretion on the appellate Court to allow additional evidence in order "to enable it to pronounce judgment, or for any other substantial cause". This discretion should not be given a restricted interpretation as would, in effect, amount to tying down the hands of the appellate Court and stand in the way of doing complete justice in a cause.

 

Ann Mia and others vs Babar AH Mondal and others 6 BLC (AD) 98.

 

Order XLI rule 27

 

It baffles our comprehension how the High Court Division could have set aside the decree of the trial Court which was not before it to consider. The Additional District Judge in whose court the appeal is now pending may admit additional evidence as admissible under Order XLI, rule 27 of the Code.

 

Raziur Rahman Chozvdhury (Md) vs Bangladesh & others 6 BLC (AD)W 6.

 

Order XLI rule 27

 

The appellate Court appears to have relied on the sale certificate and writ of delivery of possession filed first time in appeal but there is no order admitting the same as additional evidence and marking them as exhibits and in such circumstances the Court of appeal was wrong in relying on sale certificate and the writ of delivery of possession in proof of auction sale and delivery of possession as well.

 

Abul Kashem Howlader vs Sultan Ahmed and others 9 BLC 333.

 

Order XLI rule 31

 

The trial Court has correctly discussed the evidence on record in coming to its findings of facts, but the appellate Court did not consider all the material evidence taken into consideration by the trial Court nor did it advert to its reasoning which is contrary to the provisions of Order XLI, rule 31 of the Code and also perverse as has been rightly found by the High Court Division.

 

Profulla Kumar Biswas and another vs Nagen Chandra andors 6 BLC (AD) 130.

 

Order XLI rule 31

 

If the finding is not supported by substantial evidence and materials on record interference is well justified. It is to be remembered that when the Court of first instance after considering the evidence and demeanour of the witnesses came to a finding which has been reversed by the appellate Court without giving due consideration on the proper aspect of the case, there cannot be any reason why the finding of the lower appellate Court should not be set aside as the same is not a proper judgment of J reversal.

 

Fatema Khatun vs Fazil Mia 6 BLC 241.

 

Order XLI rule 31

 

As there is corroborative evidence of possession of plaintiffs' side over the suit land for more than 60 years which is the legal requirement for claiming title by way of adverse possession against the Government and the learned Assistant Judge rightly discussed the evidence on record and decreed the suit in favour of the plaintiffs when the judgment of the learned Subordinate Judge is not a proper judgment of reversal as he has not discussed the evidence on record and thereby failed to discharge his duties as an appellate Court which is the final court of fact.

 

Waziul Bashar (Md) and another vs Khaja Ahmed & others 6 BLC 124.

 

Order XLI rule 31

 

It is a settled principle of law that the lower appellate Court being final court of fact will have to discuss and reassess the evidence on record independently while either reversing or affirming the finding of the trial Court. In case of reversal it is more incumbent upon the appellate Court to reassess the evidence on record and to arrive at his own independent finding. In the instant case, the specific findings of the trial Court have not been reversed by the lower appellate Court exercising its power under Order XLI, rule 31 of the Code. Accordingly, trial Court's judgment and decree are restored.

 

Hajarilal Mondal and others vs Md Mozaffor and others 8 BLC (AD) 77.

 

Order XLI rule 31

 

It appears that the trial Court on proper appreciation of the evidence on record rightly held that the case as filed by the opposite party No. 1 was barred by limitation and such finding was not reversed by the appellate Court with sufficient and cogent reasons and thus the judgment of the appellate Court is not a proper judgment of reversal as per provisions of law as laid down in Order XLI, rule 31 of the Code.

 

Liakat Ali Sheikh & ors vs Mahatabuddin & ors 8 BLC 302.

 

Order XLI rule 31

 

In the instant case, the High Court Division is the final Court of fact and it disposed of the case in a very slipshod manner without discussing the oral and documentary evidence adduced from the side of the plaintiff. Accordingly, the case was sent back on remand to the High Court Division for hearing the appeal afresh on merit.

 

Azizul Huq (Md) and others vs Puma Chandra Das 9 BLC (AD) 218.

 

Order XLI rule 31

 

It appears that all the issues involved in the suit has rightly been framed, considered and decided by the trial Court with reference to the evidence and materials on record but the impugned judgment of the appellate Court is not a proper judgment of reversal as it failed to consider the evidence, oral and documentary on record and, as such, the appellate Court committed an error of law resulting in an error in the decision occasioning failure of justice.

 

Aminul Hoque (Md) vs Sanat Kumar Dhar and others 9 BLC 322.

 

Order XLI, rule 31

 

The law is well settled that the extent of jurisdiction of the revisional Court is limited. The revisional Court is within its jurisdiction in reversing the judgment of the lower Court if the same is the result of misreading of the evidence or has been made leaving the legal evidence out of consideration or that while arriving at the decision misconstrued the documentary evidence or left the vital evidence out of consideration without assigning any reason. If the judgment of the lower Court does not suffer from any one of the aforesaid defects the revisional court is not competent to disturb the finding and decision arrived at by the last Court of fact.

 

Government of Bangladesh represented by the DC, Jessore vs Ershad Ali Moral bothers 10 BLC (AD) 34.

 

Order XLI, rule 31

 

The documents, the Exhibits 8 and 9, were formally proved by PW 4, Habibur Rahman and PW 5, Giasuddin which all the more fortifies the title of the plaintiff but the same have not been considered at all by the appellate Court which it was under obligation to do as per Order XLI, rule 31 of the Code of Civil Procedure.

 

Siddick Ali (Md) alias Abu Siddiq vs Md Harun Mia and ors 10 BLC 492.

 

Order XLI, rule 31

 

It appears that the trial Court considered all aspects to the case in decreeing the suit but the appellate Court failed to consider the material part of the statement of the witnesses and it did not properly reverse the findings and observations of the trial Court.

 

Moulavi Md Hossain vs Hashem Saoud alias Abul Hashem and others 10 BLC 498.

 

Order XLI, rule 33

 

In the suit interest was prayed from 7-6-1995 which is the date of the pronouncement of the award till realisation and this interest is neither pre-reference period interest nor pendente lite interest but future interest, that is, from the date of the award till realisation of the money and this prayer appears to be in accordance with justice and fairness. Though neither the Arbitrators nor the trial Court granted interest the High Court Division in the exercise of the power conferred upon it under Order XLI, rule 33 of The Code of Civil Procedure can grant interest.

 

Chittagong Steel Mills Ltd and another vs MEC Dhaka and others 10 BLC 230.

 

Order XLIII rule l(c)

 

Being unsuccessful in restoring the pre-emption case filed under section 96 of the State Acquisition and Tenancy Act the Pre-emptor preferred an appeal under Order XLIII, rule l(c) of the Code which was allowed by the learned Subordinate Judge in the impugned order. It is the view of our Appellate Division that no appeal lies against an order dissmissing an application made under Order IX, rule 13 of the Code for restoration of a proceeding under section 96 of the State Acquisition and Tenancy Act and such view shall apply equally to an application laid under Order IX, rule 9 of the Code for restoring a pre­emption case to its file and number. Thus, the Miscellaneous Appeal preferred before the District Judge was not tenable in law.

 

Haripada Mandal vs Bidhan Chandra Mondal 8 BLC 155.

 

Order XLIII rule l(r)

 

The order rejecting petition for temporary injunction squarely falls under Order XLIII, Rule l(r) of the Code and it is appealable and not revisable and Revision Petition before the High Court Division is not maintainable.

 

NCCBLvsPBL 8 BLC 391.

 

Order XLIII rule l(t)

 

On a perusal of Order XLIII, rule l(t) read with section 106 of the Code, it is crystal clear that in the instant case the learned District Judge had no jurisdiction whatsoever to entertain the aforesaid Miscellaneous Appeal as well as the Review Miscellaneous case and as such the orders dated 6-9-94 and 25-5-96 passed in the Miscellaneous Appeal No. 39 of 1994 and Review Miscellaneous Case No. 358 of 1994 respectively are nullities and they have no existence in the eye of law and hence there is no scope to enter into the merits of the Rule. Accordingly, the Rule was discharged and the Miscellaneous Appeal No. 39 of 1994 was sent back to the learned District Judge for passing an order ! in accordance with law for presenting the same before the proper Court.

 

Abul Mansur (Md) & ors vs SC Sarkar & ors 8 BLC 298.

 

Order XLVII rile 1

 

On a perusal of Order XLIII, rule l(t) read with section 106 I of the Code, it is crystal clear that in the I   instant case the learned District Judge had no jurisdiction whatsoever to entertain the I aforesaid Miscellaneous Appeal as well as the Review Miscellaneous case and as such the orders dated 6-9-94 and 25-5-96 passed in the Miscellaneous Appeal No. 39 of 1994 and Review Miscellaneous Case No. 358 of 1994 respectively are nullities and they have no existence in the eye of law and hence there is no scope to enter into the merits of the Rule. Accordingly, the Rule was discharged and the Miscellaneous Appeal No. 39 of 1994 was sent back to the learned District Judge for passing an order in accordance with law for presenting the same before the proper Court.

 

Abul Mansur (Md) & ors vs SC Sarkar & ors 8 BLC 298.

 

Order XLVII rule 1

 

Learned Subordinate Judge committed a patent illegality in allowing the amendment appli­cation of the plaintiff-opposite parties dated 26-10-1993 on reviewing the order dated 27-3-94 recording rejection of amend­ment petition. In the event of rejection of the first amendment application there was no justification on the part of the learned Subordinate Judge to allow the second amendment application moreso on review­ing the order dated 27-3-94 recorded by him in refusing to amend' the plaint. Finality must attach to a decision rendered by a judge and the decision recorded by the said judge can be set aside or reversed not by the said judge but by a Superior Judge of a higher Court.

 

Abdul Hannan vs Sharfuddin Md Reza Hai & others 8 BLC 320.

 

Order XLVII rule 1

 

The view taken and decisions recorded by learned Single Judge might have been erroneous and the erroneous decision, if any, could be challenged by petitioner on carrying a Civil Petition for Leave to Appeal before Appellate Division for correction of said decision. Decisions recorded by learned Single Judge was subject to correction by apex Court, ie Appellate Division, but not definitely by same Court (High Court Divi­sion) in exercise of a limited jurisdiction under rule 1 of Order XLVII of the Code.

 

Siddique (Md) Master vs Samsul Plaque 8 BLC 688.

 

Order XLVII rule 1

 

Since the pre-emptor Subitri Sundari Mali transferred her land by way of gift dated 27-10-1999 in favour of substituted opposite party No. l(a) the contiguous plot No. 334 and got no subsisting interest on the contiguous plot No. 334 to the plot transferred which is plot No. 335 she got no right to be graced with a verdict of pre-emption. Both pre-emptor and the pre-emptee acquired equal status, that is strangers to case holding. Such transfer by way of gift was not within knowledge of the pre-emptee when civil revision case was Heard and disposed of. This is a discovery of a new and important matter which is a good ground for review of the decision in civil revision case. This can be also, characterised as an error apparent on the face of the record.

 

Mofizul Islam Sarker (Md) vs Subitri Sundari Mali and others 9 BLC 146.

 

Order XLVII rule 1

 

Since there is no provision in the Artha Rin Adalat Ain contrary to the provision of Order XLVII rule 1 of the Code of Civil Procedure, an application before the Artha Rin Adalat is competent under Order XLVII, rule l(l)(b) of the Code of Civil Procedure.

 

Abdus Samad vs Sonali Bank and others 9 BLC 554.

 

Order XLVII rule 1

 

Order XLVII, rule 1 of the Code empowers the writ Court to review their own judgment or order on the reason of mistake or error on the face of the record. In the instant case the High Court Division ought to have exercised their review power taking into consideration the annexures to the writ petition. Without following the usual course of remanding the writ petition for its disposal by the High Court Division, in the instant case, the Appellate Division allowed the appeal declaring the impugned Memo as illegal, without any lawful authority and of no \ legal effect.

 

Monoranjan Basu and others vs Bangladesh and ors 7 BLC (AD) 79.

 

Order XLVII rules  1, 2  and 8

 

Learned Trial Judge on a consideration of proceedings between the parties, different orders, facts and circumstances of the case recorded order of restitution on allowing Review Miscellaneous Case and the said decision was maintained by Appellate Judge canvassing reasons. Mere registration of case in year 1995 cannot make opposite parties out of Court on point of limitation when petition under Order XLVII, rule 1 and section 151 of the Code had been presented on 2-1-93 within period of limitation fixed by law which is 90 days as provided in Article 173 of the Limitation Act. Omission to advert to apply mind to papers already on record and failure to take into consideration those papers is an error which is very much apparent on the face of the record. No exception can be taken to the decisions rendered and conclusion reached by the Judges of the Courts below.

 

Waliullah vs Hasina Begum & ors 8 BLC 694.

 

Order XLIX, rule 3

 

It must be remembered that when the present Code was enacted by Parliament the Letters Patent of 1865 was in force and, as such, it was felt necessary by the Parliament to incorporate Part 9 and section 129 in Part 10 in the Code along with Order XLIX, for smooth exercise of those jurisdictions by the chartered High Courts. It appears that after the repeal of the Letters Patent when both the Ordinary Original Civil jurisdiction and the Extraordinary Original Civil Jurisdiction of the High Court has been thrown away the aforesaid provisions of section 118 of Part 9 and Order XLIX, rule 3 has become redundant, superfluous and unnecessary and today there is no scope for the High Court Division to exercise any Ordinary Original Civil Jurisdiction or Extraordinary Original Civil Jurisdiction. Therefore, the aforesaid provisions of the Code has become redundant, superfluous and -unnecessary. It, thus, appears that like the legal community even our Parliament, laboring under misconception of law, amended these provisions in 1960 and in 1978 but they have lost sight of the fact that the Dacca High Court had never exercised those jurisdictions till 1978 and after 1978 no more these jurisdictions are available to the High Court Division.

 

Sonali Bank vs Bengal Liner Ltd and others 10 BLC 148.

548

The Constitution of Bangladesh, 1972 (Part-1)

Citation: 9 BLC 539, 8 BLC 601, 9 BLC 601, 6 BLC 644, 8 BLC 349, 6 BLC 289, 9 BLC (AD) 67, 6 BLC 11, 8 BLC (AD) 179, 10 BLC (AD) 179, 6 BLC (AD) 31, 7 BLC (AD) 40, 10 BLC 713, 7 BLC (AD) 67, 6 BLC 726, 6 BLC 1, 7 BLC 689, 8 BLC 158, 10 BLC 734, 7 BLC (AD) 125, 6

Case Year: 1972

Subject: The Constitution

Delivery Date: 2018-05-07

The Constitution of Bangladesh, 1972

 

Articles  7, 27, 29, 31  and 102

 

The respondents ought to have appreciated that their authority to resort to Rule 55(2) was circumscribed by the resolution dated 7-8-92 of the BJMC Board unanimously approving and adopting the, recommendation of the five-member committee for transferring employees who were willing to continue their service to other units under the BJMC.

 

The arbitrary decision as has been given by respondent 1 as effected by respondent 2 in issuing wholesale termination letters is a clear manifestation of gross abuse of power and is thus without any lawful authority and of no legal effect and being unconstitutional and void as being in violation of the petitioners' rights under Articles 27, 29 and 31 of the Constitution.

 

Dr. ATM Nazmul Akhter and others vs Secretary, Ministry of Jute and another 9 BLC 539.

 

Articles 7, 80, 81, 88 and 102

 

Per Mr M A Aziz J : The argument that the Bill was a Money Bill must fail. The President did never recommend the Bill as a Money Bill as it was not sent for his recommendation as a Money Bill and the endorsement of the Speaker of the Bill as a Money Bill under Article 81(3) being without authority and power is a nullity and the certificate not being a magic wand had no mesmerism to transform a non Money Bill into a Money Bill in derogation of Article 81(1) of the Constitution. Having taken oath to protect, preserve and defend the Constitution, the Speaker violated his oath and acted without jurisdiction and power.

 

Afzalul Abedin vs Bangladesh and others 8 BLC 601.

 

Articles 8, 31, 40 and 102

 

Even though the petitioners failed on all scores in this writ petition but succeeded on the welfare score which is the basic norm of 'social justice' as enshrined in the preamble and under Article 8 o"f the Constitution without rendering effective assistance and making offer to the company for manufacturing alternative 'non-alcoholic products, cancellation of the registration of the company was not proper. The Rule was made absolute on the terms that the industrial concern would manufacture such drink, for internal consumption, permissible under the law of the country, but not "Crown" and "Hunter" or any alcoholic beverage, with due clearance from the authority concerned, if they so wish and the Board of Investment will render necessary assistance to the industry concerned for manufacturing and marketing of such products.

 

Crown Beverage Ltd and another vs Board of Investment and others 9 BLC 601.

 

Articles 9, 11, 59 & 102

 

It appears from the report submitted by the Thana Nirbahi Officer that the concerned rural area within Teknaf mouza, the proposed urban area, satisfies the requirement of law. Besides, the said report was prepared in course of his official duties and is presumed to be correct unless it is shown otherwise. When the petitioner himself wanted to be the Administrator of the newly declared Paurashava, the objection of the petitioner against such alteration has got no legal basis and when the inhabitants of the concerned urban area did not raise any objection in response to the notice published under rule 3 of the Rules of 1978, inviting suggestions and/or objections, in respect of the proposal for declaring the said urban area as a municipality, it is apparent that the requirements of law as spelt out in the Ordinance as well as in the rules have been fully complied with and the Government rightly declared the urban area of Teknaf Sadar Thana as Teknaf Pourashava. The Government did not ; record the reasons for invoking section 18A of the Pourashava Ordinance in appointing the respondent No. 4 as Administrator of Teknaf Pourashava. Mere stereotyped statement that the order was passed in the interest of the public has got no value. The Government have ignored the provisions of Articles 9, 11 and 59 studded in the Constitution and hence the order appointing the respondent No. 4 as the Administrator of Teknaf Pourashava is declared as illegal, void and without any lawful authority.

 

Ejahar Miah alias Ezharul Haque vs Government of Bangladesh and ors 6 BLC 644.

 

Articles 10, 27, 28(2) 29(2) 31, 40 & 102

 

Petitioner has challenged the second proviso to section 4 of the Muslim Marriages and Divorces (Registration) Act, 1974 and the Muslim Marriages and Divorces (Registration) Rules, 1975 particularly Rules 3, 4 and 10 and the order dated 3-2-2000 appointing respondent No. 6 as Nikah registrar for three Unions of his Nikah Registration area and also to strike down the second proviso to section 4 of Act No. LII of 1974 and the Rules framed thereunder. The existing Rules of 1975 is inept, in cohesive, inadequate, ambiguous and ineffec tive having tendency to pick and choose policy, arbitrariness, absurdities and require to be remodeled and redrafted in the given situation and demand of time with sound thought and modern look with reference to Articles 10, 28(2) 29(2) 27, 31 and 40 of the Constitution and the warrant of Procedure. Thus the Muslim Marriages and Divorces (Registration) Rule, 1975 is struck down being unconstitutional.

 

Ruhul Mannan Helali vs Bangladesh 8 BLC 349.

 

Articles 21, 28 and 102Public interest litigation

 

The footpaths, the pavements and the streets are public property and not intended.for encroachment by the private persons, otherwise the purpose of the Government will be frustrated and the public will be prejudiced. Accordingly, the respondents Government are directed to keep the foot-paths, pavements of the roads and streets including narrow streets of the Dhaka. City clean and clear for passage and use of public and passersby and the respondents shall make a concerted move to remove unauthorised constructions and stop dumping of all sorts of construction materials from the foot­paths and pavements of the roads and streets.

 

Omar Sadat vs Bangladesh and others 6 BLC 289.

 

Articles 26, 27, 29(i), 31 and 102

 

The selections of 46 officers was properly made by the Departmental Promotion Committee on the basis of merit-cum-seniority and were recommended for promotion as they all have passed the departmental examinations which the appellant has failed ,to pass but were promoted to the present Grade under the concessionaire rule 8(1) of BCS (Examination for Promotion) Rules, 1986 and the appellants being the beneficiaries of the said rules as they derived the benefit for themselves to which they are not otherwise entitled to under rule 5 including rule 5(3A) of the Bangladesh Civil Service (Recruitment) Rules, 1981 and the appellants as well were not at all affected by rule 8(e) and, as such, the impugned rules are not violative of the fundamental rights guaranteed under Articles 26, 27, 29(1) and 31 of the Constitution.

 

Delowar Hossain Mollah and others vs Secretary, Ministry of Establishment andors 9 BLC (AD) 67.

 

Article 27

 

When other exchange cases were regularised there should not be any discrimination in regularising the plaintiff's exchange case when it stands on the same footing as all citizens are equal before the law and are entitled to equal protection of law and hence the order passed by the defendants in refusing to regularise the plaintiff's exchange case is illegal and discriminatory and the suit is liable to be decreed in full.

 

Moymena Khatun and others vs ADC (Revenue) and another, 6 BLC 11.

 

Article 27

 

Provision of section 4(b)(i) of the Ordinance relates to the class of building in respect whereof notice within the time specified in the said provision has already been issued and the provision of section 4(b)(ii) of the Ordinance relates to an abandoned property in respect whereof Government filed suit after the date that was specified in section 4(b)(i) of the Ordinance and as the provision of section 4(b)(i) and 4(b)(ii) relate to two distinctly situated classes of abandoned building it cannot be said that the provision of section 4(b) (ii) is discriminatory being violative of Article 27 of the Constitution.

 

Dr Fakir Anjuman Ara vs Bangladesh and others 8 BLC (AD) 179.

 

Article 27

 

Once the project comes to an end the services of the employees in the project also come to an end. The appellant having been appointed on work-charge basis in a project and the post not having made a regular one so as to entitle him to receive pension benefit could not claim reliance on the equality basis being a person similarly situated under certain mistake decision arrived at or misconstruction of certain circular having no force of law and the referred decision has rightly observed that on wrong decision in favour of one of the employee cannot be multiplied by applying the selfsame wrong in favour of the appellant.

 

Abdur Rahman (Md) vs LGRD and Co­operatives and another 10 BLC (AD) 179.

 

Articles 29, 30, 31 and 102-

 

Respondent No.4 evidently is junior to the writ-petitioners who are the members of the General Administrative Cadres and they are entitled to promotion according to the joint seniority list prepared in 1991 with all benefits attached to their posts and such benefits cannot be taken away as has been done by the impugned orders as those fail on the doctrine of promissory estoppel.

 

Chairman, Bangladesh Water Development Board, WAPDA & anr vs Kazi Hedaytul Islam and others 6 BLC (AD) 31.

 

Article 31, 36 and 102

 

The High Court Division was correct in directing renewal of the passport of the writ-petitioner because the delay in renewal of the passport will be prejudicial for him as he will be deprived of performing holy Haj.

 

Government of Bangladesh vs Professor Ghulam Azam 7 BLC (AD) 40.

 

Articles 35(2) and 102

 

The petitioner was already punished by the BJMC for such allegation by way of demotion to the post of a Manager from the post of Deputy General Manager. Subsequent punishment handed by the Martial Law Authority and the BJMC by way of dismissal and termination respectively, is an illegality being malafide, malice in law and viola tive of Article 35(2) of the Constitution.

 

Sk Abul Kasem vs Secretary, Ministry of ]ute, Government of the People's Republic of Bangladesh 10 BLC 713.

 

Article 36Per AM Mahmudur Rahman:

 

The power conferred under Article 7(2) of the Passport Order to impound a passport is violative of fundamental right guaranteed under Article 36 of the Constitution and rules of natural justice is applicable in such a case inasmuch as it seriously interferes with the constitutional right of the holder of a passport to go abroad in restricting him to leave and re-enter Bangladesh.

 

HM Ershad vs Bangladesh and ors 7 BLC (AD) 67.

 

Article 39(2)—Hartal—

 

Hartal is a historically recognised democratic right exercised by political parties. Independence of Bangladesh was achieved through hartal for days together. Hartal is a right to be enjoyed generally but it may be restricted to prevent activities which are illegal and considered undesirable in the public interest. Hartal cannot be declared illegal. It is a democratic right but it should be observed peacefully without resorting to any illegal activities. (Per Syed JR Mudassir Hossain J agreeing).

 

Khondaker Modarresh Elahi vs Government of the People's Republic of Bangladesh 6 BLC 726.

 

Article 39(2)(a)

 

A call for hartal without any threat expressed or implied would be an expression of protest which is guaranteed by Article 39(2)(a) of our Constitution. But as soon as the call for hartal becomes more than a call which by use of language of threat or show of force or warning of consequence for violating the call is expressed or implied which is likely to create fear and apprehension in the mind of ordinary citizen it would cease to be an expression protected by the Constitution. (Per Mainur Reza Chowdhury).

 

Khondaker Modarresh Elahi vs Government of the People's Republic of Bangladesh 6 BLC 726.

 

Article 41

 

As a short measure, the High Court Division has recommended, to be taken that study of Muslim Family Laws Ordinance must be introduced in all schools and madrasahs and that the Khatibs in all the mosques must be directed to discuss the Ordinance in their Friday sermons. As a long measure, it is recommended for a unified education system and an enactment to control the freedom of religion subject to law, public order and morality within the scope of Article 41(1) of the Constitution inasmuch as a particular group of men either getting education from madrasah or forming a religious group are becoming fanatics with wrong views.

 

Daily Banglabazar Patrika and two others vs District Magistrate 6 BLC 1.

 

Article 42

 

Petitioners are entitled to invoke their fundamental right guaranteed under Article 42 of the Constitution, although the deprivation of their right to continue in possession as owners of the land requisitioned and acquisitioned in excess of the requirement of the requiring body, Roads and Highways Division, was made by pre-constitution orders in 1951 and 1957 inasmuch as the deprivation of the petitioners is sill continuing as the excess land still remains unused and unutilized. The aforesaid pre-constitution orders of requisition and acquisition have thus become void because of the violation of the said fundamental right. Consequently, the impugned order of acquisition in this case, insofar as it relates to the excess land measuring 1.10 acres of land in the two plots is also illegal, invalid and viola tive of the fundamental right of the petitioners as guaranteed under Article 42 of the Constitution.

 

Ameer Hossain (Md) and others vs Ministry of Land of others 7 BLC 689.

 

Articles 42 and 102

 

Although the Court of Settlement rejected the application of the petitioner on the ground of limitation but the High Court Division while exercising the powers under the writ jurisdiction can enter into the factual aspect of the matter where fundamental rights of the petitioner have been violated as guaranteed under Article 42 of the Constitution.

 

AH Hossain and another vs Ministry of Public Works 8 BLC 158.

 

Articles 44 and 102(1)

 

Right to move the High Court Division in accordance with clause (1) of Article 102 for the enforcement of fundamental right conferred by this part is also a fundamental right under Article 44 of the Constitution. Where a person moves the High Court Division under Article 102(1) of the Constitution for enforcement of his fundamental right the writ petitioner is not required to avail of the alternative remedy before any other forum, in the present case before the appellate authority as .contemplated under Article 10- of the Bangladesh Passport Order. It may be pointed out that proviso to Article 10 does not provide for anyJ appeal against any order made by the Government and the order of the Secretary is the order of the Government and in that case no appeal shall lie as contemplated in proviso to Article 10 of the Order and the writ petition is quite competent.

 

HM Ershad vs Bangladesh and ors 7 BLC (AD) 67.

 

Articles 47(2) and 102

 

In the absence of payment in lieu of notice the termination orders were void in the eye of law—The decisions of the Government as transpired from the papers on record on behalf of the respondents only that the excess number of employees of the BADC should be encouraged to retire voluntarily but nowhere the Government wanted the BADC to apply the provisions of Regulation 55(2) of the Serivce Regulations of 1990. In the instant cases, neither Agricultural Development Corporation Ordinance, 1961, nor the Service Regulations made thereunder, are protected legislations under Article 47(2) of the Constitution.

 

Shamsul Haque Mazumder and others vs BADC and others 10 BLC 734.

 

Articles 65, 83 and 102

 

Article 83 of the Constitution made it clear that no tax shall be levied or collected except by or under the authority of an Act of Parliament. Section 3 of the Excise and Salt Act, 1944 has authorised levy of duties specified in the schedule. Thus the fixation of the rate of tax to be levied has been left to the executive authority as it neither involves policy nor is it considered to be the essential feature of legislation. And in this regard the intention of legislature should not be frustrated unless the delegated legislature has intended to be so. Under our Constitution there is considerable intermingling of the Governmental functions, or large part of the legislative function is carried out by Ordinances promulgated by the head of the state and in considering the validity of the impugned amendments and the notifications issued by the National Board of Revenue under the provisions of section 3(4) of the Excise and Salt Act, 1944 had the sanction of law and, as such, taxation power was also expressly saved by Article 83 of the Constitution. It appears from the notification dated 1-7-88 introducing new rules substituting the earlier one to levy and collect excise duty on capacity basis of the filling valve laid down guiding principles in Rule 3 (1) and 3(2) of the said notification and in Rule 5 thereof. In order to meet the objection of the respondent as to the basis of assessment, suffice it to say that rule 3(2)(3)(4)(5)(6) published in the notification dated 1-7-88 are the basis of assessment and levy as is Rule 3(1) taking into consideration the minimum production capacity of 8000 bottles per hour which is reasonable and the guideline so framed can neither be termed to be of no standard or unreasonable. Thus the objection of the respondent is that the production capacity of the factory as determined by the appellants bears no relation to its actual production or that it is not physically capable of producing the quantum of bottles as determined by the appellants is of no substance.

 

Bangladesh and others vs Eastern Beverage Industries Ltdand another 7 BLC (AD) 125.

 

Articles 66 and 67

 

As the respondent No. 1 has been convicted for more than two years and the nature of offence amounts to moral turpitude and accordingly it attracts the provision of sub-clause (d) of clause (2) of Article 66 as well as sub-clause (d) of clause (1) of Article 67 of the Constitution and hence the respondent No. 1, HM Ershad has been disqualified to be a Member of the Parliament under the provision of Article 66 and his seat as a Member of the Parliament has been vacated under the provision of Article 67 of the Constitution for committing moral turpitude.

 

Zahedul Islam Khan (Md) and others vs HM Ershad & others 6 BLC 301.

 

Articles 83 and 102

 

Section 7 of the Finance Act, 1997, by which surcharge has been imposed is an Act of the Parliament and it has been determined therein as to when, how and what amount of surcharge will be realised from the goods, imported in Bangladesh. There is no doubt that the Finance Act, 1997 is an Act of the Parliament and the same has the full force of law in levying or collecting taxes or other charges/duties as contemplated in Article 83 of the Constitution and it is not contrary to any provision of the Constitution.

 

F Rahman Oil Mills Ltd and others vs Commissioner of Customs and others 7 BLC 660.

 

Articles 96 and 102

 

Considering the contents of the report of the Supreme Judicial Council and the provisions of Article 96 of the Constitution it appears that the impugned order as has been passed by the Hon'ble President removing the petitioner from his office is beyond the mandate given to him under Article 96 of the Constitution and the impugned order reflects the non-application of mind by the Hon'ble President in passing the order of removal of the petitioner from the office of Judge of the High Court Division of the Supreme Court of Bangladesh. Thus the impugned order of removal not being authorised by Article 96(6) of the Constitution is apparently an order passed without jurisdiction and without proper authority. The order of removal of the petitioner from the office of judge of the High Court Division is declared to be without jurisdiction and "without lawful authority and is of no legal effect.

 

Syed Shahidnr Rahman vs Bangladesh & others 10 BLC 354.

 

Articles 96(5)(6) and 102

 

The petitioner is not without any forum for redress of his grievance and not barred from proceeding under the provisions of Article 96 of the Constitution. It appears in the instant case that the allegations have been made in respect of conduct of the learned Chief Justice, while he is in office, the instant application as framed and filed is not maintainable under Article 102 of the Constitution.

 

Abdus Salam Mamun, former Additional Judge, High Court Division, Supreme Court of Bangladesh vs Mr Justice Syed ]R Mudassir Husain, Chief Justice of Bangladesh and ors 10 BLC 309.

 

Article 102

 

Since from the materials on record it is seen the existing Managing Committee was dissolved for its inaction as to the management of the school. The High Court Division has rightly vacated the order of stay since the same was creating impediment in the proper management and running of the school.

 

Hossain Ali (Md) vs Chairman Board of Intermediate & Secondary Education, Rajshahi and ors 6 BLC (AD) 102.

 

Article 102

 

As the writ petitioner had no means of knowing that the property was being treated as abandoned property she could not seek alternative remedy before the Court of Settlement and hence the writ petitioner is entitled to invoke the writ jurisdiction. The impugned judgment and order of the High Court Division warrants no interference therewith.

 

Secretary Ministry of Works, Government of Bangladesh vs Hasner Jahan Ahad 6 BLC (AD) 111.

 

Article 102Court of Settlement--Jurisdiction

 

It appears from the letter of the Sub-Registrar that the deed of gift was duly executed and registered when the competent authority has certified that the deed has been duly registered but the Court of Settlement cannot question the registration and the duty of the Court of Settlement is to look into the claim of the respondent on the basis of this deed of gift and it may very well look into whether the deed of gift has been acted upon or not.

 

Bangladesh, represented by the Secretary, Ministry of Housing and Public Works & mother vs Shirely Anny Ansari 6 BLC (AD) 85.

 

Article   102

 

RAJUK has got no authority to demolish the structure legally constructed and oust an allottee from any allotted land in the manner as has been done in the present case.

 

SM Shakil Aktar vs Rabeya Khatun and others 6 BLC (AD) 48.

 

Article 102

 

In exercise of power under section 4 of the Services (Reorganisation and Conditions) Act, 1975 the Health Directorate and Family Planning Directorate Order 1998 was published in the official Gazette on 27-12-98 being SRO No. 293 which having not been challenged the petitioner cannot challenge the subsequent orders and notifications, etc. made in exercise of power given in the said SRO.

 

Syeedur Rahman Khan (Md) vs Secretary, Ministry of Health and Family Welfare 6 BLC (AD) 53.

 

Article 102

 

It is clear that the Chief Martial Law Administrator interfered with the awarding of sentence and imposed 3 sentences namely, imprisonment, fine and confiscation which the High Court Division found to be not authorised by law when the confiscation has been affirmed in the later part of the order of Chief Martial Law Administrator the High Court Division rightly found that this should be held to be without lawful authority.

 

Bangladesh and another vs Feroz Mehedi 6 BLC (AD) 80.

 

Article 102Writ of quo warranto—

 

In order to perform the functions of the public duty of citizens to demand removal of all usurpers in public interest anyone can file a writ of quo warranto and the writ petition is quite maintainable when the objection regarding alternative remedy cannot also be raised under the facts and circumstances of the present case.

 

Zahedul Islam Khan (Md) and others vs HM Ershad & others 6 BLC 301.

 

Article 102

 

There can be no question of delay in presenting a petition for writ of quo warranto wherein the right of a person to function in a certain capacity has been challenged as every day a fresh cause of action arises on the theory of "De die in diem" meaning thereby from day to day and hence no application for quo warranto can be dismissed for any length of delay.

 

Zahedul Islam Khan (Md) and others vs HM Ershad & others 6 BLC 301.

 

Article 102

 

As the respondent No. 5 did not file review petition before the Review Board following the Rule 18 the respondent Nos.3 and 4 acted illegally in allowing the application for including the "Charduani" ghat in the route permit and time-table of respondent No.5 violating the Rule 18 of the Rules of 1970.

 

Talim Ltd vs Bangladesh, and others 6 BLC 23.

 

Article 102

 

The petitioner having withdrawn his letter of resignation before the same could be accepted by the respondents and such resignation letter was submitted not following the Regulation of the Corporation and even after withdrawal of his resignation he was allowed to work for some days, the respondents acted illegally, malafide and without jurisdiction in accepting the resignation letter of the petitioner.

 

Jashimuddin (Md) vs Bangladesh Biman Corporation & ors 6 BLC 73.

 

Article 102

 

In view of section 19 of Bangladesh Jute Research Institute Act, 1974 the office order dated 13-3-95 issued by the Ministry of Agriculture deleting the mandatory provision of Regulation 43(8) of Bangladesh Jute Research Institute Employment Regulation, 1990 in taking final decision in the matter of any proceeding against an accused person in 180 working days after communicating the charge levelled against him, the so-called amendment in Regulation 43(8) by such office order has no legal basis and hence the petitioner having not been dealt with within 180 working days is deemed to be innocent and he is exonerated from the charge levelled against him.

 

ASM Serajuddin vs Bangladesh, 6 BLC 175.

 

Article 102

 

Accepting the offer of the petitioner to purchase the property in question the Bhawal Court of Wards Estate filed an application in printing form on 19-1-97 required under section 184(1) of Income Tax Ordinance of 1984 stating that the property in question would be sold to the petitioner at a consideration of Taka three lac and odd which has created promissory estoppel in favour of the petitioner and against the respondents.

 

Meherunnessa vs Bangladesh and others 6 BLC 209.

 

Article 102

 

For the purpose of forming an opinion as to whether ITCL was engaged in carrying out its banking business without required permission of Bangladesh Bank the enquiry was held by the competent person of Bangladesh Bank with prior show cause notices and after enquiry and before forming final opinion and before making the impugned declaration a second show cause notice was served upon the ITCL informing its proposed action and as such there is no lack or dearth of natural justice. The ITCL was not prejudiced in not giving personal hearing as in the reply to the show cause notice no such prayer was made. Although it is said that the ITCL is carrying on business according to Islamic method but in fact they pay interest against the deposits like other banks and the manner of business is quite against the Islamic Principle and method. The High Court Division is satisfied and convinced that the ITCL has been carrying on Banking business and the Bangladesh Bank after examining the necessary documents legally holding enquiry after observing all the necessary formalities formed its opinion that the ITCL is a Banking Company and hence the Rule is discharged.

 

Islamic Trade and Commerce Ltd vs Bangladesh Bank and others 6 BLC 273.

 

Article, 102

 

The importers of goods as petitioners filed the respective writ petition challenging the impugned inflated and fictitious GIF price and CRF Certificate endorsed by PSI Agency violating the Customs Act, Pre-shipment Inspection Order, 1999 and GATT Valuation Agreement and sought relief by way of judicial review of the High Court Division. The respondents having not acted in accordance with law and PSI order and acted in excess of the PSI Agency's power conferred under section 25A of the Customs Act and PSI Order, 1999 and hence these rules are made absolute directing the department to determine the normal value of the goods imported by the respective petitioner in accordance with law ignoring the arbitrary and fictitious CIF value certified by the PSI Agency.

 

Showkat Ali and 15 others vs Commissioner of Customs and others 6 BLC 357.

 

Article 102

 

Where the respondents have not acted in accordance with law and acted in excess of the power conferred under the law the petitioners can invoke the writ jurisdiction without exhausting the alternative forum.

 

Showkat Ali and 15 others vs Commissioner of Customs and others 6 BLC 357.

 

Article 102

 

It was incumbent upon respondent 1, the Waqf Administrator to remove respondent 2 from the office of Mutawalli as soon as it was found that Mutawalli mismanaged the affairs of Waqf Estate and violated the terms of the Waqf deed. Respondent 2 failed to fill up the vacancies of Executors and he ran the affairs of the Waqf Estate alone arbitrarily violating the pious wishes of the Waqif and the provision of section 32(1) of the Waqf Ordinance, 1962 is very much attracted in the instant case and the Mutawalli is liable to be removed.

 

Yeasin Ali Pmmanik vs Waqf Administrator Dhaka and ors 6 BLC 427.

 

Article 102

 

Delay in filing writ petition-Effect of—The petitioner company came to know that their property was taken over by the Government as an abandoned property in 1973 and as such there was no reason for them not to check the Gazette Notification which was published pursuant to Ordinance No. LIV of 1985. The reasons assigned by the petitioner company for this inordinate delay in filing this writ petition do not appear to be genuine and sufficient. The petitioner company could not satisfactorily explain the delay and on that count also the Rule is liable to be discharged.

 

Eastern Industries (Bangladesh Ltd) vs Bangladesh & another 6 BLC 91

 

Article 102

 

It appears that after receiving the order of conviction of the Metropolitan Magistrate the petitioner was dismissed from his service with effect from 9-6-90 in terms of section 3(1) of the Ordinance No. V of 1985. It further appears that the learned Additional Sessions Judge by his judgment and order dated 17-6-96 allowed the appeal by setting aside the aforesaid order of conviction dated 9-6-90 and acquitted the petitioner. The provisions of section 3(3) of the Ordinance No. V of 1985 will be applicable in this case and the petitioner is liable to be reinstated in his former service because of the aforesaid order of acquittal.

 

Kazi Nasiruddin vs Bangladesh and others 6 BLC 447.

 

Article 102

 

It appears that the money suit was decreed in terms of compromise against the defendants 1-2 and 6 and decreed ex parte against the rest including the petitioner as well. Money suit having been filed for realisation of Taka twenty-one croe and odd and the same having been decreed in full in terms of the compromise as well as ex parte, the petitioner is bound to pay the decretal amount as ex parte decree was passed against him.

 

SM Abul Hossain vs Agrani Bank and others 6 BLC 459.

 

Article 102

 

Petitioner is treated as regular employee in the absence of any specific office order—The respodnent 4 cancelled the said order of LPR without giving any show cause notice and without affording him any opportunity of being heard violating the principle of natural justice and hence the cancellation order of LPR apparently seems to be arbitrary, malafide and illegal as the authority withdrew the benefits granted earlier in due course of law and procedure.

 

Abdul Awal Munshi (Md) vs BWDB and others 6 BLC 463.

 

Article 102

 

The direction given by the Registrar to the petitioner to go to the Court does not come within the power of the Registrar as contemplated under section 193 of the Companies Act. It is a right of the members of public to inspect the documents and obtain certified copies from the office of the Registrar and such right cannot be held back on the ground that the Registrar has not accepted/ approved the returns filed with the Registrar.

 

City Bank Limited vs Registrar, joint Stock Companies and others 6 BLC 479.

 

Article 102

 

There is no materials showing support of 30% workers in the establishment. It appears that the finding of the Labour Court is mere surmise based on no materials on record and as such the impugned judgment and order of the Labour Court suffers from legal infirmity and it is liable to be set aside as the respondent No. 2 union has failed to fulfil the requirement of provision of section 7(2) of the Industrial Relations Ordinance, 1969.

 

Naogaon Zilla Motor Sramik Union vs Chairman, Labour Court and others 6 BLC 484.

 

Article 102

 

When the petitioner filed an application before the Registrar, Co­operative Society for adjudication about the various allegations in respect of the co­operative society it was the duty of the Registrar to adjudicate the matter himself and in case of his finding any difficulty to decide the matter involving complicated question of law and facts he could have referred the matter to the District Judge under section 86 of the Co-operative Society Ordinance, 1984 but he cannot refer the matter to District Co-operative Officer, who also cannot refer the matter to the District Judge, who acting as a persona designata cannot transfer the petitioner's application to the Additional District Judge for disposal.

 

Globe Mantle Industries Sramik Union Multipurpose Co-operative Society Ltd vs AshrafAli and others 6 BLC 490.

 

Article 102

 

Ends of justice would be best served if the petitioner is allowed to prefer the appeal with 100% Bank Guarantee instead of 50% deposit in cash.

 

Seacom Shipping Ltd vs Commissioner of Customs and others 6 BLC 516.

 

Article 102

 

It appears from Probidhan 57 that the Chittagong Port Authority has been empowered to take decisions subject to post approval from the Ministry of Ports and Shipping to meet the urgency. The decision was taken on 3-9-94 by the Chittagong Port Authority at the initiation of the Security Division but the decision was general and was applicable to all departments of the said Authority. Thus the petitioners' case also comes under the said decision dated 3-9-94 and they can get their relief through this decision.

 

Abu Taher Mizi (Md) and others vs Bangladesh, and others 6 BLC 525.

 

Article 102When legitimate or reasonable expectation may arise—

 

In the instant case, the government discontinued the School Feeding Programme in violation of their own Policy Decision taken by the Prime Minister of the country on 12-7-1997 on the summary prepared by the Ministry of Disaster Management and Relief on 30-6-1997. The concerned Ministry of the Government, MDMR neither changed the policy of the Government in respect of School Feeding Programme for a better one nor stopped the Programme as ineffective to control malnutrition or for any other unavoidable reasons. The MDMR simply did not renew their agreement with the petitioner company stopping them to make further suppliers of their Soya products to the schools, consequently the School Feeding Programme came to a halt. Such discontinuance of the said School Feeding Programme was in gross violation of the legitimate expectation not only of the petitioner alone but also of the millions of under-nourished children of Bangladesh warranting interference by the High Court Division for judicial review of the executive inaction and their inert conduct. Respondents are directed to implement their policy decision in respect of the School Feeding Programme as contained in their summary dated 30-6-97.

 

Bangladesh Soya-Protein Project Ltd vs Secretary, Ministry of Disaster Management and Relief, Bangladesh Mothers 6 BLC 681.

 

Article 102

 

Test of ordinary contract and the contract by State-—In the instant case, the government under the Fertilizer (Control) Order, 1985 controls the production, sale and distribution in its sovereign capacity and hence there is no doubt that the petitioner entered into a contract with the respondents for supply of fertiliser as a subsidiary of the BCIC and as such the contract in this case is not an ordinary contract like supplying of chairs and the same was not entered into by the petitioner with the respondents in the ordinary trading capacity of the government, rather, it was a contract in discharge of the function of the State as a sovereign power arising out of statutory rule and hence although the relief sought for arose out of a contract the petition is maintainable.

 

Zaharuddin (Md) vs Bangladesh and others 6 BLC 712.

 

Article 102

 

In the present case, the petitioner was alleged to have sold fertilizer in black market at the mill gate and the matter was enquired into by the Additional Deputy Commissioner and others but the allegations of selling fertilizer at the Mill gate could not be established and even before cancellation of the petitioner's dealership licence he was not afforded the opportunity of showing cause as to why the licence would not be cancelled and hence the impugned order was passed without lawful authority and is of no legal effect.

 

Zaharuddin (Md) vs Bangladesh and others 6 BLC 712.

 

Article 102

 

The contention that the promotion upgradation was designed to restrain respondent No. 2 from carrying on their trade union activities cannot be accepted because the upgradation was made to implement the scheme of the corporation and its implementation was not confined only to the petitioner's mill and there is no denial that the policy was implemented only in the mills in question.

 

BSFIC and another vs Chairman, Second Labour Court, Dhaka & am 6 BLC 718.

 

Article 102

 

Respondent No. 3 cancelled the examination of the petitioners without any basis violating the provisions of Rules 1.5 and 3.2 of the Rules of 1993 and they were illegally debarred from appearing at the examination for one year. Accordingly, respondent No. 3 was directed to publish the result of the petitioners in accordance with law and to allow the petitioners to sit at the examination for the next session.

 

Sharif Mahmud Masum & ors vs Bangladesh and others 6 BLC 722.

 

Article 102Locus Standi

 

As the petitioner is a practicing Advocate of the High Court Division and because of hartal he was unable to pursue his legal profession and he being a conscious citizen filed the writ petition as a public interest litigation claiming that he is affected by the hartal call, he is an aggrieved person who has locus standi to file the present writ petition. (Per Mainur Reza Chowdhury, J).

 

Khondaker Modarresh Elahi vs Government of the People's Republic of Bangladesh 6 BLC 726.

 

Article 102Hartal—

 

There being adequate remedy under the existing laws the writ court will be loath to grant the declaratory relief sought for by the petitioner. Hartal is a political issue. It is resorted to and supported by the party in opposition while it is criticised and opposed by the party in power. So, the determination whether hartal is good or bad depends on the position held by the political parties. As such this political issue should in all fairness be decided by the politicians themselves without unnecessarily burdening the Court to adjudicate something it is not empowered to do. (Per MA Aziz, J, agreeing).

 

Khondaker Modarresh Elahi vs Government of the People's Republic of Bangladesh 6 BLC 726.

 

Article 102

 

Per Bimalendu Bikash Roy Chowdhuty J (agreaing): The universal norms of freedom respecting rights of leaving the country and returning have been recognised in Article 36 of our Constitution and hence there is full application of Article 13 of the Univsrsal Declaration of Human Rights to the facts of the instant case.

 

HM Ershad vs Bangladesh and ors 7 BLC (AD) 67.

 

Article 102

 

As the learned Attorney-General could not point out any error in the findings of the High Court Division as to creation of 465 posts in Class-I on abolition of 465 posts of Class II Circle Officer (Development) and that of petitioners' entitlement to the seniority in Class-I with effect from 14 June, 1976 and that the learned Attorney-General could not place any material to show that any post of the total 465 Class-I posts was filled up at any time by examination and that from the materials on record it is seen that the respondents 1-11 were entitled to be absorbed in Class-I posts from June 14, 1976 and as such no interference with the order of the High Court Division is called for.

 

Government of Bangladesh vs Nazrul Islam Chowdhury and ors 7 BLC (AD) 14.

 

Article 102

 

A proceeding was initiated for acquisition of some land for establishing a Co-operative Institute and notices under sections 3 and 6 were served which was challenged in writ jurisdiction on the ground that the land was unspecified and indefinite and the High Court Division rightly rejected the writ petition summarily as no such question was raised before the acquisition authority.

 

Mizanur Rahman (Md) vs DC Mymensingh and others 7 BLC (AD) 17.

 

Article 102

 

The writ petitioner constructed a one storied building within the extended time with the approved plan of three-storied building but RAJUK entered into the case premises and demolished the structure including boundary wall on the ground that the writ petitioner failed to construct the building within the extended time and then RAJUK allotted the case land to other persons after advertisement. There was no wrong in such construction by the writ petitioner and the ground floor has been constructed within time as per approved plan and the entire plan was approved for a three storied building but that does not impose any obligation upon the lessee to complete the entire construction within the time limit as there is nothing in the lease deed nor is there any provision of law empowering RAJUK to enter the case land and demolish the building constructed with the approved plan as has been rightly found by the High Court Division.

 

Rajdhani Unnayan Kartipakhya (RAJUK) vs Rabeya Khatun and another 7 BLC (AD) 18.

 

Article 102

 

Although the writ petitioner could not seek relief before the Court of Settlement in spite of that the High Court Division entertained the writ petition relying on the two decisions of the High Court Division. This case was such a case where the property in question did not come within the definition of abandoned property and no notice was served under section 7 of PO No. 16 of 1972 on the occupant of the building and the petitioner had no means of knowing that the property was being treated as abandoned property and the writ petitioner and her predecessor, the Eastern Housing Limited had never left the country or abandoned the property as has been rightly found by the High Court Division.

 

Secretary Ministry of Works Government of Bangladesh vs Hasner Jahan Ahad 7 BLC (AD) 20.

 

Article 102

 

There can be no vested right in continuing a service for an indefinite period and section 13 of the BSS Ordinance empowers the BSS to determine the terms and conditions of its employees as it considers necessary for the efficient performance of its affairs. Rule 53 of the Rules of 1995 itself has given a reason to the effect that the age of retirement has been fixed at par with the provision of the Public Corporation (Management Co­ordination) Ordinance, 1986 which is neither arbitrary nor discriminatory.

 

ASM Habibulla and others vs Government of Bangladesh and ors 7 BLC (AD) 24.

 

Article 102

 

As the resignation of the respondent from the post of Senior Traffic Officer, C'hittagong Airport was of immediate effect and that such resignation having become effective from 29-8-1998, subsequent filing of letter dated 6-9-1998 seeking permission to withdraw the letter of resignation and that the signing of attendance register from 9-9-1998 to 14-9-1998 has in way brought to an end of the matter of resignation that became effective from 29-8-1998.

 

Bangladesh Biman Corporation and others vs Md Jusimuddin 7 BLC (AD) 32.

 

Article 102

 

In view of the pendency of the civil suit and appeal between the parties for the self-same land, the writ petition is not maintainable.

 

Shahajadi Begum Waqf Estate vs Ministry of Communication and another 7 BLC (AD) 41.

 

Article 102

 

High Court Division has committed no error in discharging the Rule upon taking the view that the facts stated in the writ petition were vague and unspecified, particularly relating to the number of sex workers, house and holding numbers wherein the sex workers were living and pursuing their profession, and the facts are disputed question of fact and hence the impugned judgment calls for no interference.

 

Sultana Nahar, Advocate vs Bangladesh and ors 7 BLC (AD) 89.

 

Article 102

 

The writ-petitioner-respondents cannot seek relief against the sale deed dated 9-11-89 by filing another Writ Petition. Principle of res judicata under section 11 CPC is applicable in a writ proceeding as the same is also a Civil Proceeding. The relief claimed in Writ Petition No. 4127 of 1972 filed by the writ petitioner-respondents agamst the appellants of both the appeals was barred by the principle of constructive res judicata for implied refusal of their claim in respect of the self same sale deed dated 9-11-89 in Writ Petition No. 798 of 1990.

 

Bangladesh vs Luxmi Janardhan Jew Thakur and others 7 BLC (AD) 114.

 

Article 102

 

Admittedly, respondent No. 1 did not pray for his reinstatement in service with back wages and the relief sought for was in declaratory form and the Labour Court found that such relief was not available to the respondent even though he had a good case for directing reinstatement. The High Court Division granted relief by way of reinstatement with 50% back wages. It is well settled that the High Court Division cannot sit as a court of appeal in such matters and act as a civil appellate authority and hence the High court Division acted beyond its jurisdiction.

 

Bangladesh Tobacco Company Ltd and another vs Md Azizul Huq & another 7 BLC AD) 119.

 

Article 102Legitimate expectation—

 

Since the respondents could not establish that enterprise in question was one of those enterprises shares of which as mentioned in the Gazette Notification were under scrutiny for transfer, as such, the respondents in the light of mere mentioning in the Gazette Notification "shares of some Textile Industrial Enterprises are under scrutiny for transfer" cannot be said to have in any case of legitimate expectation to have the National Cotton Mills Ltd. denationalized. Mere approaching the Government by the 30% shareholders of a particular Nationalized Industrial Enterprise would not create a right or entitlement to have the enterprise denationalized because decision as regard denationalization of a particular nationalized industrial enterprise exclusively lies with the Government and that such decision is only taken in the national interest and as such even on the establishment of 30% shareholdings right Bangladeshi nationals cannot as of right claim denationalization of the nationalized enterprise if Government consider that denationalization would be against national interest. Since there is no material on record wherefrom it can be said that Government in rejecting the respondent's prayer for denationalization of the enterprise in question acted in violation of its declared policy relating to denationaliza­tion or that departed from its policy relating to denationalization and as such the Government in rejecting representation made by the respondents as conveners of the Committee of the shareholdings of the National Cotton Mills Ltd. has not acted unfairly or unreasonably.

 

Chairman Bangladesh Textile Mills Corporation vs Nasir Ahmed Chy and others 7 BLC (AD) 144.

 

Article 102

 

Respondent had no vested legal right to have open space between her house and the lake. There is no papers to show that the lake has been or is being filled up for the project. The narrow strip of vacant land which is being converted into plots is only an extension/addition of Gulshan residential plots by altering the layout plan, and would not adversely affect the environment of Gulshan or destroy the greeneries or the lake and that there has been no change of the master plan either and hence the impugned judgment and order of the High Court Division is set aside.

 

Chairman, RAJUK and others vs Parvin Akhter 7 BLC (AD) 167.

 

Article 102Amendment of writ petition—

 

In a writ petition, where notification so far it relates to the land acquired from the petitioners for maintaining a shop was challenged, prayer was sought to be amended to direct respondents to allot plots of reasonable size to the petitioners contiguous to the Panthapath Road separately to the petitioner Nos. , 1-3 and jointly to the petitioner Nos. 4-7 at a price acceptable to the petitioners. In this case, allotment of some commercial plots to the affected persons were made after the issuance of Rule which being subsequent events claiming that discrimination was made in the matter of allotment of plots. It appears that the amendment sought to be made will not change the nature and character of the writ petition, rather it is in conformity with the prayer made in the main writ petition and this will also avoid multiplicity of the proceedings and accordingly, amendment petitions are allowed.

 

Abdul Gani & others vs Rajdhani Unnayan Kartriphakkaya and others 7 BLC 22.

 

Article 102

 

Learned Advocate for the petitioner frankly concedes that the age limit for retirement of a worker has been prescribed under Act 17 of 1994. Section 14A of the Public Corporation (Manage­ment Co-ordination) (Amendment) Act (17 Of 1994) has prescribed age limit for retirement of worker of enterprise on completion of 60 years of age. Accordingly, respondent Nos. 2 and 3 were directed to pay the retirement benefits to the petitioner at the present, taking the date of birth of the petitioner as on 16-9-34. Petitioner shall have the liberty to claim the retirement benefits on the basis of his date of birth as on 16-3-41 if he can prove such date of birth by any competent forum or authority in accordance with law.

 

Mrinal Kanti Roy vs Secretary, Cabinet Division, Government of Bangladesh and others 7 BLC 28.

 

Article 102

 

If the eligible person is not considered for promotion, in such case the aggrieved person can enforce his right by invoking constitutional jurisdiction of the High Court Division as such right cannot be enforced by invoking the jurisdiction of the Administrative Tribunal.

 

M Abu Raihan vs Secretary, Ministry of Science and Technology, Bangladesh Secretariat and others 7 BLC 44.

 

Article 102

 

The ETV has been enjoying the privilege of terrestrially broadcasting its programmes by using the only other terrestrial channel of BTV without the required licence under the Wireless Telegraphy Act, 1933 and, above all, on the strength of a fraudulent licence transferred to it by Mr AS Mahmud, who never participated in the tender and even if for argument's sake it is assumed that the licence obtained by Mr AS Mahmood is good, it cannot give legitimacy to the ETV whose offer was rejected as being non-responsive and respondent No. 6 (The ETV Ltd.) is thus restrained from terrestrial broadcasting its programme only.

 

Dr Chowdhury Mahmood Hasan vs Government of Bangladesh & others 7 BLC 77.

 

Article 102

 

Considering the provisions of law and the decisions of the apex Court of this Sub-continent it has been found that the trial of the convict petitioner is without jurisdiction and without lawful authority and as such the impugned judgment and order of conviction and sentence is void ab initio.

 

Bangladesh Legal Aid & Services Trust & another vs Bangladesh & others 7 BLC 85.

 

Article 102

 

It cannot be said that the petitioner did not get any opportunity of being heard. As the petitioner's reply was unsatisfactory, the Ministry for Labour and Manpower cancelled his recruiting licence and forfeited his security money. There is no reason to accept the., contention of the petitioner that he has been prejudiced by such order of the government, rather, it is found that the right acquired by him was lost by his conduct for which the authority rightly cancelled his recruiting licence and forfeited his security money.

 

Humayun Kabir (Md) vs Ministry of Labour and Manpower 7 BLC 103.

 

Article 102

 

The respondent Nos. 2 to 4 have no authority and jurisdiction to decide any question relating to ownership or transfer of share and internal management of the petitioner company. The respondent No. 5 is nobody and is not connected with the petitioner company in any manner. The allegations made in the writ petition are not disputed by way of filing an affidavit-in-opposition by the respondents and hence they are deemed to be correct and admitted. Thus, the respondent Nos. 2 to 4 acted illegally and without jurisdiction in addressing the respondent No. 5 in the impugned letters as Director of company for firstly, the action tantamounts to induction of respondent No. 5 into the internal management of the petitioner company and secondly, it will encourage respondent No. 5 to obstruct in and interfere with the management in running normal business activity and internal affairs of the petitioner company smoothly before any decision is taken in the suit or appeal.

 

Andhar Manik Tea Company Ltd vs Government of Bangladesh & ors 7 BLC 129.

 

Article 102

 

Sub-sections (1) and (2) of section 25 of the Customs Act authorises the department to assess normal.price of the goods/import in question in the Rule considering the contemporary commercial price of the goods at the place of origin with notice to the importer or agent to produce any document or paper in support of their invoice value which shall be the basis for ascertainment of the normal price in the event of cancellation of the CRF certificate.

 

Nazir Ahmed vs National Board of Revenue and others 7 BLC 193.

 

Article 102

 

The respondents having not acted in accordance with law and PSI ] Order  and  acted in excess  of the PSI agency's power conferred under section 25A of the Customs Act and PSI Order, 1999 application under Article 102 of the Constitution is maintainable in spite of the alternative forum as prescribed by section 193 of the Customs Act.

 

Nazir Ahmed vs National Board of Revenue and others 7 BLC 193.

 

Article 102

 

Having regard to the facts disclosed by both the petitioner and respondent No. 4 to the effect that there had been no conflict of interest in functioning their association since 1972, the respondent No. 2 ought to have responded to the justice demand notice dated 12-8-94 issued on behalf of the petitioner and in not responding so, the respondent No. 2 has acted illegally and such non-action tantamounts to negligence of his duties. Accordingly, the respondent No. 2 is directed to dispose of the issue involved brought to his notice by the demand of justice notice dated 12-8-1994 as per section 4A read with section 3(2)(d) of the Trade Organisation Ordinance, 1961.

 

Bangladesh Inland Waterways (PC) Association vs Bangladesh, and others 7 BLC 231.

 

Article 102

 

Since the petitioner was not an employee under the Revenue Budget and he cannot be treated as a Government Servant and as such he cannot claim the benefit of the Time Scale, Selection Scale as are allowed by the Services (Pay and Allowances) Order for the years 1985,1991 and 1997 and there are no illegality or irregularity in the impugned orders and in the audit report.

 

Belayet Hossain (Md) vs DC, Directorate of' Civil Audit and others 7 BLC 236.

 

Article 102

 

In view of the decision given by the High Court Division in the writ petitions which were upheld in review petition and in view of law of acquiescence, promissory estoppel apart from the provisions of specific performance of contract the petitioner having had fulfilled his part of obligation in respect of the sale transaction the Government are now under obligation to perform its obligation by executing and registering the required sale deed.

 

SM Abdul Ali vs Secretary, Ministry of Public Works & Urban Development & others 7 BLC 259.

 

Article 102

 

Petitioner has challenged the action of the Board, the respondent No. 2, cancelling registration of students of Humanities Group of Motijheel Model High School and College, "Dhaka and refusing to issue Admit Cards to them to enable them to appear at the ensuing Higher Secondary Certificate Examination to be held by the respondent No. 2 from 27th April, 2000 and to direct ' the respondent No. 2 to allow them to sit for the said examination. There was a certain degree of negligence on the part of the Board and their omission to inform the College and the students might have induced the petitioner to pursue her studies under old syllabus and curriculum to her detriment. Mere difference in choosing the optional subject will not affect the marks obtained by the students and assessment of their merit of the subjects selected by them. The other arguments made by the learned Counsel for the respondent No. 2 is that the relief claimed under writ jurisdiction is in personam, that is, the petitioner cannot claim relief by this application for her fellow students. There is merit in the submission of the learned Counsel. But if we accept that the petitioner has the right to appear in the HSC Examination to be held in May, 2000 under the previous-syllabus and curriculum, the respondent No. 2 will also recognise the right of other students although they are not petitioners in this writ petition and give relief accordingly. Accordingly, the Rule is made absolute.

 

Marufa Akhter Jharna vs Government of Bangladesh and ors 7 BLC 268.

 

Article 102

 

From the impugned order it appears that the Board, in view of the telephonic conversation with the local Member of Parliament, changed the Chairman of the Governing Body of Fazila Rahman Mohila College, Nesarabad, Pirojpur and the Deputy Commissioner was nominated to act as Chairman of the College in place of the petitioner. In Regulation 4 there is nothing to show that once a chairman is nominated by the Deputy Commissioner and his nomination is approved by the Board that nomination can be changed by the Board again. On perusal of the Regulation Nos. 3 to 13 of the Regulations of 1977, it appears that there is no provision to change or to replace the Chairman of the Governing Body of Non-Government College and hence the impugned order of replacement of the petitioner by the Deputy Commissioner, Pirojpur was made without any lawful authority.

 

Shamim Hasan (Md) vs Chairman, Board of Intermediate and Secondary Education and ors 7 BLC 478.

 

Article 102

 

Neither Assistant Social Welfare Officer nor Market Supervisor has yet been incorporated in the feeder post of Deputy Taxation Officer under Dhaka Municipal Employees Service Rules, 1989, so they are disqualified to be posted in charge of the post of Deputy Taxation Officer.

 

Shamsul Alam Miah (Md) vs Mayor, DCC and ors 7 BLC 403.

 

Article 102

 

It is now well settled that the rate of customs duty which was prevalent on the date of opening of the letter of credit is leviable on an imported merchandise and as such the customs authority illegally and without jurisdiction realised customs duties on the basis of the subsequent SRO and hence the petitioners are entitled to get refund of the excess duties realised from the petitioners. The question of limitation of three years will not stand in their way as it does not appear that the petitioners have abandoned their claim at any point of time before coming to the Court. Since the realisation is illegal and in violation of the provision of law the respondents are under a legal duty to refund the same to the petitioners either on the pronouncement of the judgment by the Appellate Division reported in 48 DLR (AD) 199 or even after the demand made by the petitioners pursuant to that judgment. Accordingly, the respondents were directed to refund the excess duties within three months from the date of receipt of the certified copy of the judgment.

 

Mostafa Kamal vs Collector of Customs and others 7 BLC 524.

 

Article 102

 

The petitioners have vested right to their seniority from the date of their appointment on Ad-hoc basis and ,on the basis of regularisation of their service by the Public Service Commission and the gradation list has already been acted upon and hence the writ petition is maintainable and the impugned Memo has been issued without lawful authority and is of no legal effect and the impugned Memo is declared ultra vires the fundamental right guaranteed by the constitution.

 

Shamsuddin Miah (Md) and others vs Ministry of Communication, represented by the Secretary, Roads and Highways, Bangladesh Secretariat 7 BLC 527.

 

Article 102

 

The petitioners have challenged the action of the respondents in not approving the plan for multi-storied building of the petitioners. From the submission of the learned Advocates and on perusal of the papers and maps it appears that without taking evidence it is very difficult to ascertain whether the landn of the petitioners falls within the Khulsi Raod Development Project of the Chittagong Development Authority and whether the neighbouring owners of the land have been granted No Objection Certificate in violation of any terms of the project under process by the Chittagong Development Authority. All these questions are related to fact and without taking evidence this matter cannot be settled in the writ jurisdiction. From the Memo dated 25-03-97 it is clear that the respondents have not violated the provisions of Rule 7(2) (Kha) of the Building Construction Rules, 1996. The disputed issue involved in this writ petition relates to a fact which is required to be decided by a competent Civil Court after taking proper evidence.

 

AKM Khurshidul Anwar and another vs Chairman, CDA and others 7 BLC 544.

 

Article 102

 

Neither the Ministry of Education nor the Director General of Intermediate and Higher Education Directorate, Bangladesh has got any authority, in view of the Governing Body Rules of 1994, directing the Principal of the said affiliated college to reinstate the said professor and to pay him all arrear pay.

 

Sadruddin Ahmed vs Director General, Intermediate and Higher Education Directory Dhaka and ors 7 BLC 584.

 

Article 102

 

It appears that donor was under the agony of the thought of death. In order to get the benefit of section 4 of the Gift Tax Act, 1990 it is not necessary that the gift must be made on the death bed. Respondent Nos. 2 and 3 erred in law in interpreting section 4(X) of the said Act and illegally rejected the prayer of the petitioner for mutation and therefore the impugned orders are declared to have been passed without jurisdiction and the respondent No. 3 is directed to mutate the name of the petitioner in the records of right in place of the donor.

 

Nazma Begum vs Bangladesh and others 7 BLC 655.

 

Article 102

 

It appears that in both the Service Rules namely, Bangladesh Shipping Corporation (WKt'ft WWl) Service Rules, 1999 and Bangladesh Shipping Corporation (Officers and Employees) Service Rules, 1997 of the Afloat and Shore Establishments there is the provision for study leave and there is no provision of inter-transfer on .the ground of study leave and as such the transfer of the petitioner from the Afloat Establishment to the Shore Establishment is not covered by the Service Rules of the said Corporation and consequently, such transfer is unauthorised. When the Corporation can transfer any of the employees from the Afloat Establishment to the Shore Establishment within the Corporation without affecting his basic salary and status the reduction in the pay scale of the petitioner is against the said rules and against the principles of natural justice. It is the settled principle that vested right of a person cannot be divested without any show cause or without drawing up a proceeding.

 

Abu Hena Md Mamun vs BSC and others 7 BLC 678.

 

Article 102

 

No prior permission was obtained by the petitioner from the Ministry of Agriculture or from the Government of Bangladesh before importation of such fertilizer. The Ministry of Agriculture being responsible for controlling the import of fertilizer and distribution of fertilizer under the Import and Export Act, 1950, the Import Policy Order, 1997-2002 and the Fertilizer Control Order, 1999 and they had the authority to issue direction to another Department of the Government namely, the Customs Authority to stop unloading of the fertilizer from the vessel M V Alkimos.

 

Bulk Trade International vs Commissioner, Customs and others 7 BLC 682.

 

Article 102

 

It appears that the Merchantile Fire and General Insurance Company Ltd is included in Part B and the Central Insurance Company Ltd is included in Part A of the schedule of the Bangladesh Insurance (Nationalisation) Order, 1972 (PO 95 of 1972) and as such service of the petitioner in these two 1 companies is countable under Regulation ll(5)(a) of the Sadharan Bima Corporation Karmachari Regulations, 1988 when Regulation 11(5) also provides that if any employee has served in one or more institution mentioned in Part A and B of the Schedule of PO 95 of 1972 that service shall also be included in the countable service for the purpose of the Regulations of 1988. Service in more than one institutions, as mentioned in Regulation 11(5) is not simultaneous but successive. The petitioner's service in the two Insurance companies prior to nationalisation is, therefore, countable service for the purpose of counting 25 years of service. The intended meaning of Regulation 11(5) is to give continuity of service of an employee who has served in the schedule institutions one after another for the purpose of counting 25 years of service. The petitioner's resignation from one company and joining the other will not disqualify him from continuity of service nor he be deprived of his pension and other retirement benefits ensured by the Regulations of 1988. Accordingly, respondent 3 was directed to accept voluntary retirement of the petitioner from service and pay pension and other benefits as per the said Regulations of 1988.

 

Abdul Matin vs Bangladesh represented by the Secretary Ministry of Commerce and others 7 BLC 724.

 

Article 102

 

Although the petitioner was involved in the criminal proceeding, he was subsequently released on bail but while he was in police custody the order of suspension was issued on 1-3-99 by the respondent No. 2 but before passing the order of suspension the respondent No. 3 appointed the respondent No. 4 as acting Chairman of Sandhikona Union Parishad. There are no materials to show that there was any murmur in the locality about the petitioner's involvement in the criminal case or that the members of the said Union Parishad raised any objection against the functioning of Chairman of the said Union Parishad. It further appears that no opinion was formed by the authority against the petitioner for his normal functions of the affairs of the Union Parishad and hence the impugned order of suspension has been declared to have been passed without any lawful authority and the appointment of the acting Chairman of the said Union Parishad has been cancelled.

 

Lutfar Rahman Bhuiyan Md (Santi) vs Secretary, Ministry of LGRD and Co-Operatives, Bangladesh Secretariat, and ors 7 BLC 739.

 

Article 102

 

The dispute was not in fact the election dispute. There was therefore no warrant in law to refer the dispute to the Election A'ppeal Board under Rule 18(4) of the Trade Organisation Rules, 1994 as contended by the learned Advocate for the petitioners since the main dispute was with regard to the membership of the said 460 newly included members, which ultinately influenced the election result and hence the Arbitration Tribunal rightly set aside election result holding that the membership of the disputed members should not have been admitted by the Election Appeal Board when some of the members of the five-member inquiry committee clearly stated in the enquiry report that those disputed members were admitted as members of the Association in violation of Article 10 of the Articles of Association of the Association.

 

Bangladesh Electrical Association & others vs Bangladesh & others 7 BLC 1.

 

Article 102

 

Without giving valid notice the lease-hold right cannot be cancelled—Admittedly, the notice asking the respondent No. 1 for paying the 4th instalment and that in case of non-starting of construction, the allotment in question would be cancelled without further communication was sent to the address where knowingly the lessee does not reside. It further appears that the writ-petitioner-respondent No. 1's allotment of the plot was cancelled on 11-8-94 and on the same day it was allotted to respondent-appellant in the absence of any application from her side seeking allotment. In such circumstances, the cancellation of the lease and the allotment of the plot in question to the appellant were malafide and the action of the Housing Estate Authority is without lawful authority as it was done without giving any notice to the allottee.

 

Jahanara Ahmed vs Md Abdul Quyum and others 8 BLC (AD) 20.

 

Article 102

 

As the petitioner Bangladesh Agricultural Development Corporation is neither a commercial establishment nor an industrial establish­ment and if for argument's sake the respondent No. 1 is accepted as a worker, even in that case the respondent No. 1 being not a worker of a commercial or industrial establishment his remedy, as against the action taken by the BADC, a statutory public authority, lies in the writ jurisdiction questioning the propriety of the order dismissing him from service after the dismissal of the departmental appeal.

 

Bangladesh Agricultural Development Corporation vs Saidul Huq Bhuiyan 8 BLC (AD) 49.

 

Article 102

 

The importers having acted on the promise made by the appellants under section 25A of the Act to accept the price determined by the Government appointed inspectors the appellants cannot go back on that promise as it was meant to be binding on them. It is noticed that section 25A contained non obstantive clause at the relevant time like "Notwithstanding any thing contained in any other section of the Act" which means that it included section 30A of the Customs Act. Therefore section 25A would prevail over all other sections including sections 25(7) and 30A of the Customs Act.

 

Commissioner of Customs and others vs Monohar AH and 26 others 8 BLC (AD) 87.

 

Article 102

 

The rules and regulations relating to import of fertilizer have undisputedly not been complied with by the writ petitioner in respect of the import in question. The writ petitioner was required to import the fertilizer either from the manufacturer or from its representative but he did not do so in respect of the import in question and that he also did not obtain prior permission from the Government for importing the fertilizer in question. Accordingly, the leave petition is dismissed.

 

Bulk Trade International vs Commissioner of Customs 8 BLC (AD) 104.

 

Article 102—Termination without following the principle of natural justice— Its effect—

 

The respondent is not employed in any project like building of a house or a bridge whose purpose has been fulfilled or the project came to an end with the completion of the work but has been engaged in the modernisation of the Government General Hospital, Jessore and the nature of job of the respondent for rendering medical assistance in the matter of providing steriliser attached to OT Division and the project being a continuing one the employee's services are liable to be regularised under the terms of the advertisement, for the post.

 

Government of Bangladesh represented by the Secretary, Ministry of Health and Family Welfare and others vs Md Salim Reza 8 BLC (AD) 126.

 

Article 102

 

Since twice the allegation against the writ petitioners was found baseless and as such after a lapse of sufficient period since absorption of the writ petitioner as Assistant Teacher of Ghilatail Government Primary School the impugned action of the District Selection Committee recommending appointing of respondent No. 5 petitioner on cancellation of the appointment of the writ petitioner accepted by the Director General of the Primary Education Directorate were actuated for the purpose other than bonafide.

 

Niranjan Mitra vs Monju Dey and others 8 BLC (AD) 142.

 

Article 102

 

Selection of the petitioner was processed by computerising the result of the written examination and the viva voce examination and long after her selection she was informed that she did not fill up the form properly and legally and the selection was cancelled. The High Court Division has given correct and cogent reason to declare the cancellation order as illegal and without any legal effect.

 

Government of Bangladesh and others vsFarida Yesmin 8 BLC (AD) 150.

 

Article 102

 

The petitioners have not challenged the acquisition proceedings in the Writ Petitions. The petitioners' claim of compensation for the land acquired is dependent on the proof of their title to the said land. Whether the petitioners have any title to the land so acquired by the Government is a question of fact which can hardly be decided under the writ jurisdiction as such writ petitions were rightly held by the High Court Division as not maintainable. After due acquisition the land vested in the Government and thereafter to RAJUK. Therefore, RAJUK may issue notices for eviction to anybody found on the land so acquired.

 

Abdul Kalam Md Mohiuddin Khan vs Chairman, RAJUK and others 8 BLC (AD) 178.

 

Article 102

 

Bangladesh Agricultural Development Corporation of which the petitioner is a store-keeper which cannot be termed as a commercial establishment or industrial establishment for which the contention of the learned Advocate for the respondent that the petitioner being a worker cannot file the writ petition is not acceptable. Owing to non-service of a copy of the inquiry report upon the petitioner either along with the second show cause notice or thereafter, being the admitted position, the petitioner was seriously prejudiced in representing the case and this infringement of the rules of natural justice has rendered the order of dismissal illegal.

 

Sayeedul Huq Bhuiyan (Md) vs Chairman, BADC and others 8 BLC 42.

 

Article 102

 

In the absence of evidence or any finding even that sharies recovered were of Indian origin the conviction under section 25B(b) of the Special Powers Act 1974 is without jurisdiction. Conduct of an accused cannot be treated as substantive evidence and it can only be treated as corroborative evidence.

 

Alam Hossain (Md) alias Ibrahim vs Government of Bangladesh & others 8 BLC 164.

 

Article 102

 

When the petitioner has made out a case preventing him from availing of the alternative remedy for preferring an appeal under section 30 of the Special Powers Act the petitioner is entitled to invoke the writ jurisdiction and such writ petition is quite maintainable without availing the alternative statutory forum.

 

Alam Hossain (Md) alias Ibrahim vs Bangladesh & ors 8 BLC 164.

 

Article 102

 

It appears from the affidavit-in-opposition filed by the Government in earlier writ petition No. 57 of 1985 that the Government admitted the release of, one-fourth share in favour of Khawja Golam Hossain, vendor of the petitioners, only-three-fourth share of the property was abandoned. But after release of the one-fourth share of Khawja Golam Hossain from the list of abandoned properties and decision of the Government to sell the remaining three-fourth share to the petitioners, treating the entire property including one-fourth share of Khawja Golam Hossain as abandoned property is without any basis. It appears from the two letters relating to service of Khawja Golam Hossain that Khawja Golam Hossain was in Bangladesh at least up to 1981 which was not considered by the Court of Settlement. Court of Settlement failed to appreciate the facts involving the jurisdiction and authority of the Government in enlisting the one-fourth share of the disputed property in the abandoned list and fell in an error which is an illegality in the exercise of jurisdiction and it arrived at a wrong conclusion causing prejudice to the petitioners which made the impugned judgment liable to be declared void with regard to one-fourth share of Khawja Golam Hossain.

 

Asaf Khan and others vs Court of Settlement, First Court 8 BLC 1.

 

Article 102

 

No extraordinary jurisdiction of the High Court Division is available to a person whose grievance arises out of the order of assessment of customs duties. Petitioner has to prefer an appeal in accordance with the Customs Act, 1969.

 

Sabedur Rahman (Md) vs Commissioner of Customs & ors 8 BLC 325.

 

Article 102

 

It is now well-settled principle of law that without proceeding for realisation of the decretal amount against the principal judgment debtor, the property of the guarantor cannot be sold for satisfaction of the decree. As the petitioner was aggrieved by the order passed in his absence in a writ petition, he may seek relief in a proper forum but in this writ petition it cannot be decided whether the order passed in another writ petition was proper or not.

 

Nirmal Chandra Datta vs Joint District Judge 8 BLC 245.

 

Article 102

 

The Land Appeal Board has no jurisdiction to hear appeal/revision in respect of matters arising out of judgment and order passed by the Deputy Commissione and Divisional Commissioner in Civil suits and the power of revision lies with the Government. But the Government by specific order may delegate the power to the Land Appeal Board under section 5 of the Land Appeal Board Act, 1989.

 

Abu Taker (Md) & ors vs Land Appeal Board & ors 8 BLC 453.

 

Article    102—Lease    of   Jalmahal—Legitimate expectation—The act of non- 

 

granting lease of the Jalmahal in question in favour of the petitioner samity is also violative of the principle of legitimate expectation which demands the Government to act fairly and above board. Government's transaction should be without aversion, affection, bias, discrimination, nepotism or favouritism. But the conduct of the Government in the Ministry of Land in the present case utterly suffers from those undesirable elements and, as such, bad in law.

 

Kartic Chandra Haider vs Bangladesh and others 8 BLC 526.

 

Article 102

 

Since the activities and general affairs of Baitul Mukarram Businessmen Group as a trade organisation are controlled, supervised and administered by the government, Baitul Mukarram Businessmen Group also must be taken to have been functioning as an instrumentality of the Director of Trade Organisations which is a local authority within the meaning of section 3(28) of the General Clauses Act and also as instrumentality of the government. Hence the act of holding the elections by the Baitul Mukarram Businessmen Group on 2-1-2003 and 18-1-2003 and the publication of their results could very well be said to be an act done in conection with the affairs of the Republic and the writ petition is therefore maintainable.

 

Shafiaur Rahman (Md) vs- Bangladesh and others 8 BLC 521.

 

Article  102

 

Non-exhaustion  of the alternative    statutory    remedy    is    not mandatory but merely a directory as no consequence is spelt out for non-observance of such remedy. Moreover, this is not a question of jurisdiction but a matter of discretion with the Court. If the matter agitated in the writ jurisdiction involves disputed questions of fact determination of which is dependent on the evidence to be adduced by the parties, such matter cannot be resolved in writ jurisdiction under Article 102 of the Constitution. The present case does not involve intricate and disputed questions of fact and can therefore be determined only on the basis of materials on record without any evidence. Moreover, writ is more efficacious than an application to the Election Appellate Board and the Arbitration Tribunal and as such the present writ petition is maintainable.

 

Shafiqur Rahman vs Bangladesh 8 BLC 521.

 

Article 102

 

The elections held on 2-1-03 and 18-1-03 were not valid elections as it was held on the basis of defective and faulty voter list and as such the aforesaid elections held by Baitul Mukarram Businessmen Group in respect of its members of the executive committee and the office-bearers of the executive committee on 2-1-03 and 18-1-03 are illegal and without jurisdiction and they are accordingly set aside.

 

Shafiqur Rahman (Md)vs Bangladesh & ors 8 BLC 521.

 

Article 102

 

Since the petitioner came to this court before initiating any further action it could be said that no proceeding has been initiated and no proceeding is pending since notice for showing cause could not be issued because of the pendency of the rule and the investigation could not be proceeded with in order to take final action under Rule 19, the High Court Division was Pleased to direct the respondents to make investigation according to the provision of Rule 19 of the Rules of 1986, by issuing show cause notice upon the petitioner.

 

Ahmed Ullah vs Commissioner of Customs and others 8 BLC 558.

 

Article 102Cancellation of tender of highest bidder—Its affect—

 

It is contended on behalf of the respondent No. 4 that the cancellation order has been made in accordance with the provision of the terms of the tender schedule as the authority reserved the right to cancel the same without assigning any reason as per Clause 5 of the tender notice. This contention is absolutely untenable and does not hold good because the authority had not' cancelled the tender/bid before giving any decision on it. The tender was processed in accordance with the rules and the authority, the tender evaluation committee, after careful scrutiny, took decision on the matter and it passed through different hands and ultimately went to the Hon'ble Minister who is highest authority, and the authority gave final decision after making inquiry into the allegations made by the other participants of the tender and the matter was finally resolved, decision was given by the highest authority and then there was no scope for cancellation of the tender, issuing fresh tender notice flouting the recommendation and decision of the highest authority.

 

Monzurul Islam Liton vs Secretary, Ministry of Communication & others 8 BLC 578.

 

Article 102

 

Rule 7 read with its proviso does not empower the Commissioner of VAT to authorise his subordinate officers to carry out inspection or search of loaded vehicles with goods by setting up any checkpost at a fixed place on the road or highway but it is intended to be carried out by way of mobile checking at any place within the jurisdiction of the VAT Authority so that no untoward situation is created in the process including traffic jam.

 

Ctg Steel Re-rolling Mills Association vs Commissioner of Customs 8 BLC 582.

 

Article 102Per Mr MA Aziz f :

 

The PSA is unconstitutional not because a policeman applied his discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the Act represents an exercise of unlimited discretion, then the Act is invalid in all its applications. The PSA is unconstitutional because it does not provide sufficient minimal standards to guide the police,

 

Afzalul Abedin and others vs Bangladesh and others 8 BLC 601.

 

Article 102-Per Mr Shamsul Huda (dissenting) :

 

The Public Safety Act does not confer any discretion on the executive to select which of the cases falling within the mischief of the impugned Act are to be tried under the impugned Act. Section 3 of the Public Safety Act says that notwithstanding anything contained in any other law, this Act shall prevail. This clearly means that whatever might have been provided in the Penal Code and the Criminal Procedure Code, the impugned Act has to be applied if any conduct of any person comes within its mischief, if the executive tried to apply the general law in such a case it will be a violation of the impugned Act and will be illegal. For the abuse of the law or over exercise of power by law enforcing agencies the law cannot be declared void.

 

Afzalul Abedin and others vs Bangladesh & ors 8 BLC 601.

 

Article 102Per Mr Shamsul Huda J (Dissenting):

 

The two writ petitions arose out of the self-same occurrence and that occurrence took place in the premises of the Supreme Court Building but nobody from the Supreme Court Authority has filed any complaint or lodged the first information report. On the first information report lodged by a private person a Ramna PS case was started and ultimately, charge-sheet was submitted. If the whole case as made out in the first information report is believed it will be seen that no ingredients of any section of PSA is attracted. Accordingly, the Tribunal is directed not to proceed with the case.

 

Afzalul Abedin & ors vs Bangladesh 8 BLC 601.

 

Article 102

 

Since Public Safety (Special Provision) Act (Act VII of 2000), which is under challenge in all the Rules, has in the meantime been repealed by (Act VI of 2002), all the above Rules have been infructuous.

 

Afzalul Abedin & ors vs Bangladesh 8 BLC 673

 

Articte 102

 

The Delimitation Officer for Gazipur Pourashava after publishing the Preliminary List of Wards forwarded the objections to the Government and the Government by order dated 19-5-98 gave the decision to exclude cantonment area and thereafter the Delimitation Officer made amendments, alterations or modifications of the Preliminary List of Wards as required by the decision of the prescribed authority on 9-6-98 and 22-6-98 and notified the same. The Delimitation Officer acted in accordance with the decision given by the prescribed authority on 19-5-98. The proper course for the Gazipur Pourashava was to refer the matter to the Government in accordance with section 138 of the Pourashava Ordinance, 1977 if still there remained any dispute after publication of the final list of delimitation of wards on 22-6-98 in Annexure-B(l) to the writ petition.

 

AKM Mozammel Huq vs ADC (General),   Gazipur and Delimitation Officer, Gazipur Pourashava, Gazipur 8 BLC 674.

 

Article 102

 

The contract in question does not fulfil any one of the requirements to make the same a statutory contract or contract entered into by the Government in the capacity as sovereign. The contract that was entered into by the appellants with the respondent was an ordinary commercial contract or contract of general nature or a pure and simple contract. So the relief sought for and granted by the High Court Division is not legally available to the respondent in respect of the contract entered into between the appellants and the respondent.

 

Bangladesh Power Development Board and others vs Md Asaduzzaman Sikder 9 BLC (AD) 1.

 

Article 102

 

The writ petitioner of his own filed an application to the management seeking reemployment upon giving an undertaking that he would realise the outstanding dues from BK Shaha and that in case of his failure the outstanding dues would be realisable from his salary and service benefits and that the letters impugned in the writ petition being the follow-up of the representation, the undertaking that was obtained from the writ petitioner can in no way be said that it was obtained by the authority under coercion and duress and while he was in distress situation.

 

Abdul Majid (Md) vs Bangladesh Chemical Industries Corporation and others 9 BLC (AD) 37.

 

Article 102

 

The actions taken by the authority against the writ petitioners without giving any opportunity of being heard and the enquiry was held behind their back upon considering the materials never disclosed, the High Court Division rightly made the Rule absolute but because of pendency of the litigation the demand made by the Customs Authority will not be time barred.

 

Assistant Collector of Customs and others vs Dhaka Warehouse Ltd and another 9 BLC (AD) 40.

 

Article 102

 

The High Court Division rightly considered the question of nationality of Moslemuddin as being the national of Bangladesh on the basis of a memo issued by the Ministry of Home Affairs and he died in Bangladesh and the record shows that the writ petitioners were in possession of the case property but it was listed in 'Ka' list, there is no illegality in the judgment of the High Court Division. Besides, the petition is barred by 211 days and the explanations as offered for condonation of such delay are far from satisfactory.

 

People's Republic of Bangladesh vs Niaz Ahamed and others 9 BLC (AD) 41.

 

Article 102

 

As per provisions of ; section 93A(4)(h) of the Town Improvement Act, 1953, there is absolutely no scope for any release of the requisitioned property by the Government. Apart from the provision under section 8B of the Emergency Requisition of Property Act, 1948 for withdrawal from acquisition, there is no provision in law for release of the property as has been claimed by the petitioners as the land has been admittedly requisitioned with a view to acquire the same for Greater Dhaka Development Project by the RAJUK under specified project. Mere no- use of the acquired land for the purpose for which it was acquired will not give any right to get return of the same. Non-payment of compensation also is no ground for release of the land acquired under the provision of Emergency Acquisition of Property Act, 1948 or Town Improvement Act, 1953.

 

Abdul Huq and others vs Secretary, Ministry of Land and others 9 BLC (AD) 56.

 

Article 102

 

In 52 DLK (AD) 49, the Appellate Division held that no vested right accrued even though at the time of opening of the letter of credit there was a notification (SRO) providing for lesser tariff value. In the present cases on previous occasions the Customs Authority made assessment on the basis of invoice value. So, there is no question of acquiring vested right by the respondents merely on the basis of earlier assessment. Further, in view of adding of section 30A in the Customs Act with effect from 1-7-1995 which is long before the opening of the letter of credit in the present cases, the provisions of section 30 have been made applicable to section 25 also and so the position regarding acquiring vested right has also been completely changed. So, in terms of the provisions of sections 25(1) and 30A of the Customs Act, normal value has to be fixed on the imported Hard Board as well as MDF Boards.

 

Commissioner of Customs and anr vs Bangladesh Traders 9'BLC (AD) 77.

 

Article 102

 

Approval of establishing Private Container Terminals given by the Government without considering the feasibility study disregarding the Chittagong Port Ordinance, without following a competitive bidding procedure and ignoring the overall interests of the Country made the said approval as ex-facie illegal, malafide and without any lawful authority.

 

SSA Bangladesh Ltd and another vs Engineer Mahmud-ul Islam and others 9 BLC (AD) 84.

 

Article 102

 

The High Court Division on perusal of the local map found that at the vicinity of the new site of the Union Parishad Centre, the Family Planning Office and the Office of Muktiyudhya Sangsad, one hat, one mosque, Government Primary School, etc are situated and the High Court Division while keeping in mind the allegations and the principles of law considered the local administrative approval which was also given by way of proper resolution of the Union Parishad duly recommended by the Deputy Commissioner upon physical verification while selecting the site of the Union Parishad Complex. There being no violation of any rule the Appellate Division has found no substance in the submission of the learned Counsel for the petitioners in order to interfere with the impugned judgment and order of the High Court Division.

 

Abdul Aival Talukder vs Government of Bangladesh and others 9 BLC (AD) 112.

 

Article 102

 

Once privilege is given to a person on condition of doing any act and if such condition is fulfilled and continued to be fulfilled such privilege or right cannot be taken away or cancelled without giving him any chance of being heard as has been rightly found by the High Court Division which calls for no interference.

 

Bangladesh and others vs Md Abul Hossain 9 BLC (AD) 119.

 

Article 102

 

The question of limitation as provided in section 33(2) of the Customs Act regarding claim in respect of duties paid in the case of provisional assessment under section 81 of the Customs Act has no manner of application in the instant case since there was no final assessment. So, in no way provision of section 33 of the Act disentitles the respondent to seek direction for refund of excess duties realised at the time of provisional assessment of duties on the goods imported from India through Benapole.

 

Government of Bangladesh and others vs Md Salim Hossain 9 BLC (AD) 127.

 

Article 102

 

Memo dated 13-3-1977 written by the Senior Section Officer to the Assistant Commissioner informing that the building in question was not in the list of abandoned property but the Court of Settlement failed to consider the note-sheet of the Section Officer and such court also failed to consider the effect of rent receipt, duplicate carbon receipt and municipal mutation order in favour of the petitioner Md Abul Hossain as well as report dated 12-2-1986 of Administrative Office of Mohammadpur Housing Estate showing that the building was not an abandoned property as has been rightly found by the High Court Division which calls for no interference.

 

Court of Settlement and anr vs Abul Hossain 9 BLC (AD) 167.

 

 

549

The Constitution of Bangladesh, 1972 (Part-2)

Citation: 9 BLC (AD) 160, 9 BLC (AD) 209, 9 BLC (AD) 227, 9 BLC 34, 9 BLC 59, 9 BLC 84, 9 BLC 108, 9 BLC 110, 9 BLC 116, 9 BLC 195, 9 BLC 172, 9 BLC 203, 9 BLC 209, 9 BLC 207, 9 BLC 316, 9 BLC 331, 9 BLC 338, 9 BLC 342, 9 BLC 398, 9 BLC 486, 9 BLC 492, 9 BLC 550,

Case Year: 1972

Subject: Constitution

Delivery Date: 2018-05-07

 

The Constitution of Bangladesh, 1972

 

 

Article 102

 

Affidavits sworn by the officers denying genuineness of their signatures as appearing in the papers relating to allotments and explaining the circumstances in which the officials signed the papers of such allotments and placed by the respondent No. 1 before the High Court Division on the last day of hearing of the writ petitions and that also placed the same before the Court without compliance of the procedure but the High Court Division took notice of such papers and Annexure l(f), copy of which was not made available to the writ petitioners.

 

Shamsu Mian and others vs Government of Bangladesh and others 9 BLC (AD) 160.

 

Article 102

 

The High Court Division referred to section 30 of the Trade Unions f Act, 1965 which was a repealed law and the Registrar of Trade Unions has no authority to issue a certificate to a particular committee as a genuine committee declaring another committee to be a valid one.

 

Sultan Ahmed Talukder and another vs Registrar of Trade Unions and others 9 BLC (AD) 209.          

           

Article 102

 

The inordinate delay in considering his appeal was good enough reason for the petitioner to be aggrieved and to file the writ petition. If an order in passed without jurisdiction then that is coram-non-judice and the aggrieved person may come for relief under the writ jurisdiction although there is an alternative forum available for redress as has been rightly found by the High Court Division.

 

Chairman and another vs Sakhawat Hossain 9 BLC (AD) 227.

 

Article 102

 

The petitioner has failed to show that the disputed item came under description of goods mentioned under those HS Codes mentioned on the Letter of Credit. A buyer cannot import commercial items not covered by the relevant Letter of Credit and the HS Code. Similarly, the PSI Agent is not authorised to certify any goods other than those mentioned in the Letter of Credit and HS Code. Accordingly, the petitioner was directed to pay difference amount on normal price for those goods that were not included in HS Code quoted on the Letter of Credit.

 

Amir Hossain (Md) vs Commissioner of Customs and others 9 BLC 34.

 

Article 102

 

Since the Letter of Credit was opened during the period when the SRO dated 21-12-95 remained in force containing the item under the Table, the petitioner was bound to comply with the provisios of the said SRO. The argument that the SRO dated 17-6-96 was applied restropectively is of no substance. The petitioner had neither any legitimate expectation nor any vested right in his favour by virtue of SRO dated 4-11-94. The consignment is liable to be assessed on the basis of Tariff value.

 

Sheikh Ahmed vs Commissioner of Customs and others 9 BLC 59.

 

Article 102

 

The petitioner without annexing anything to show refusal of the customs authority in respect of release of the goods or assessment thereon and in particular without showing how he was a person aggrieved in respect of his imported goods has obtained an ad-interim order for release. The petitioner did not suffer any actual loss or injuiry for issuance of the SRO No.215 dated 12-12-95 and no writ lies for a threatened injury. As the petitioner was not a "person aggrieved" within the meaning of Article 102 of the Constitution the writ jurisdiction was not available to him. The action of the petitioner was fictitious and abuse of the process of the Court.

 

Al-Nazia Establishment vs Commissioner of Customs and others 9 BLC 84.

 

Article 102

 

At the time of filling up BPSC form No. 2, the petitioner indicated her preference for the police cadre, she was allowed to sit in the examination and that she was successful in her examination and she was called to appear before the Viva Board and ultimately, she was selected provisionally but subsequently, her selection cannot be cancelled on the ground that she did not mention any preference for police cadre in her BPSC form No. 1 as there was no mention of any vacancy in the police-cadre but it was included by subsequent amendment.

 

Farida Yesmin vs Government of Bangladesh and others 9 BLC 108.

 

Article 102

 

Respondent No. 2, Joint Director, Customs Intelligence and Investigation entered the offices and factory premises, searched and seized various documents at Barisal by forming a team in this regard. At the same time respondent No. 2 also authorised Al-haj Md Taibur Rahman, Superintendent, Customs, Excise & VAT Inspectorate to conduct the similar raid by entering the premises of the Head Office of the petitioners in Dhaka.

 

In the present case, neither the respondents No. 1 and 2 nor said Al-haj Md Taibur Rahman were authorised under section 26 or section 48 to enter the premises for inspection search or seizure of books, documents and papers of the petitioners for the purpose mentioned therein.

 

Opsonin Chemical Industries Ltd & ors vs Customs Intelligence and Investigation & ors 9 BLC 110.

 

Article 102

 

The petitioners having the service of the BSTI in the post of Inspector (Meteorology) in 1983 and also having enjoyed all the rights and privileges attached to the service have acquired a vested right to have their seniority counted from the date of their appointment in 1983 and not from 1-7-86 purportedly shown as the date of regularisation of service. Such regularisation of service is palpably illegal and without jurisdiction inasmuch as it is done at a such belated stage nearly 14 years of their appointment and that too in violation of the principle of natural justice. On the conclusion of the project on 30-3-94 service of Md Khademul Islam respondent 3 in Writ Petition No. 4012 of 1999 in the project as Assistant Director was terminated and he was out of service for more than 6 months and subsequently, Md Khademul Islam was appointed afresh as an Assistant Director (Meteorology) in the revenue budget of the BSTI on 9-10-94 and his such appointment in the revenue budget of the BSTI was a fresh appointment and thus the continuity of his service 23 Assistant Director was broken as he was out of service for more than 6 months. Hence the impugned order of bridging up of the service gap of Khademul Islam is declared illegal and vvithout jurisdiction and is accordingly set aside.            

 

It is palpably clear that respondent Khademul Islam was junior to both the petitioners, Mohammed Ali and Md Abu Hossain in service not only as Inspector but also as Assistant Director (Meteorology).

Thus the promotion, of respondent Khademul Islam to the post of Deputy Director (Meteorology) in the BSTI on 31-5-99 without considering the case of above petitioners for promotion is palpably illegal and without jurisdiction.

 

Mohammad Ali  vs Bangladesh Standard & Testing Institution (BSTI) and others 9 BLC 116.

 

Article 102

 

If possession is not taken by the Government the property cannot be included irt the "Ka" list. While going through the relevant file of the respondent, as has been produced by the learned Assistant Attorney-General surprisingly it came to the notice of the,Court that there was no notice, papers, records or documents whatsoever in the file relating to taking over and maintaining possession of the building in question. Hence it is held that the respondent, has not taken over possession of the building m question and the enlistment of the building in the "Ka" list of Abandoned Building is illegal and without lawful authority.

 

Zahir Miah (Md) vs Government of the People's Republic, of Bangladesh 9 BLC 195.

 

Article 102

 

It appears from the Memo dated 2-1-03 issued by the respondent 7 informing the respondent 4 that the petitioner was a guarantor for the loan taken from Sonali Bank and on the basis of that Memo the respondent 4 rejected the nomination paper of the petitioner. The respondents neither produced before the appellate authority nor before the High Court Division the Memo dated 2-1-03 on the basis of which the respondent 4 rejected the nomination paper filed by the petitioner and the Memo dated 6-1-03 which was jointly signed by respondents 6 and 7 and addressed to BRDB cannot be the basis of rejection of nomination paper because on 2-1-03 the date fixed for scrutiny of the nomination paper at that time even the aforesaid Memo was not issued.

 

 Zamir Hossain Master (Md) vs Bangladesh and others 9 BLC 172.

 

Article 102

 

On scrutiny of the original layout plan, it appears that the amenities such as park, playground, school, mosque, etc. are clearly marked in the map itself. The open space in front of Road No; 20 does hot appear to have been marked for any such purpose. The benefit of the open space in front of the petitioner's plot was a momentary fortuitous1 benefit, which has been taken away for the greater benefit of the community at large, which is for the provision of extra plots necessary to meet demands of the population. There is no evidence that the lake has been reduced in size. On the other hand, the new road will provide a promenade overlooking the lake, which will be for the enjoyment of all the residents in the locality. The land in question was not earmarked for any civic amenity nor was the lake encroached upon. Accordingly, the Rules were discharged.

 

Mahmuda " Parveen and am vs Chairman, RAJUK and others 9 BLC 203.

 

Article 102

 

The provisions of Order XXXVIII, rules 7 and 8 of the Code relate back to the provisions of Order XXI of the Code and would, therefore, entail an application by the petitioner under Order XXI, rule 58 of the Code. The remedy being open to the petitioner under the Code of Civil Procedure, any application under the writ jurisdiction is , not maintainable. Moreso/ the transaction from which the petitioner seeks to benefit, that is the gift, appears ex facie to be tainted by fraud upon creditors and hence she is not entitled to get equitable relief under the writ jurisdiction.

 

Nitu Poddar us Eastern Bank Ltd and anr 9 BLC 209.

 

Article 102—The appellate Tribunal has to give any decision on the appeal within 6 months from the date of receipt of the appeal as per provisions of section 42(4) of the VAT Act which haying not been done the appeal be deemed to have been allowed.

 

RM OH Refinery Ltd vs Appellate Trilyunal, Customs, Excise and VAT and oihers 9 BLC 207.

 

Article 102

 

The registration of the trade union was obtained by fraud and misrepresentation of facts as contended by the learned Advocate for the petitioner cannot be taken into consideration while sitting Union as a trade union issuing registration certificate. The Labour Court is the proper forum to adjudicate the matter whether the registration was obtained by practicing fraud or by misrepresentation of facts and decide whether the registration of the trade union shall be cancelled or not while disposing of the IRO Case No. 28 of 2002.

 

 Sadekul Islam (Md) vs Registrar- of Trade Unions and others 9 BLC 316.                

 

Article 102

 

Section 21 is clearly not dependent on the whims of either party. It is the satisfaction of the Court, that it is felt fit and proper to refer the matter to Settlement Conference, which will dictate the procedure to be followed. Section 21 of the said Ain is an overriding provision, to which effect is to be given subject only to the satisfaction of the learned Judge of the Artha Rin Adalat that the procedure would be fit and proper in his discretion.

 

HMM Alam vs Government of the People's Republic of Bangladesh and other 9 BLC 331.

 

Article 102

 

Whether or not the accused person had a reasonable opportunity to prefer an appeal is a question of fact and in the present case the petitioner appears to have had sufficient opportunity to prefer an appeal but he did not avail of the same for the reasons best knpwn to him and, as such, the petitioner is not entitled to have any remedy under writ jurisdiction.

 

Mojibur Rahman & Babu vs Deputy Commissioner, Kushtia and others 9 BLC 338.

 

Article 102

 

On a careful scrutiny of the facts giving rise to the grievances of the present petitioners reveals that the Administrative Tribunal is the proper forum as it is the proper fact finding body to go into facts as alleged by the petitioners and grant necessary relief if they were, so entitled as the petitioners have not challenged the vires of the law on the basis of which Roads and Railway Division has been created and the posts of the former Railway Division have been abolished by the respondents. Except the assertion by the learned Advocate of malafide action there is no facts averred in all the five writ petitions constituting malafide action leading to passing of the impugned orders.

 

Karimun Nessa and others vs Government of Bangladesh and others 9 BLC 342.

 

Article 102

 

In negotiating only with the respondent 3 secretly and behind the back of other responsive bidders the respondent 2 violated the terms of the tender documental rights of the petitioner and their decision dated 29rl-20Q4 to negotiate with respondent 3 and all subsequent actions including approval by respondent 1, execution of lease document on 23-2-04 and delivery of possession and realisation of bid money from respondent 3 are malafide and non-transparent and do not satisfy the requirement of non-arbitrariness in state action in the matter of distribution of state largesse and therefore are liable to be quashed. Shemsmon Put Ltd vs .Bangladesh and others 9 BLC 381.under writ jurisdiction as it involves disputed questions of fact. The High Court Division is of the view that the Registrar has not violated any provision of law in registering Rajshahi Zilla Truck Sramik Article 102—It is found that by refusing to assess customs duty on the basis of SRO No. 56 and directing to assess duties on the basis of SRO No. 158 the Customs Authority has taken the final decision for assessment and, as such, the Writ Petitions are not prematured.

 

Cab Express (BD) Ltd vs Commissioner of Customs and others 9 BLC 398.

 

Article 102

 

Upon a reading of section II of the Privatisation Act, 2000 read with the provisions of Chapter 7 of the Nitimala, it appears that the tender process begun on 8-2-2003 for a divestiture and disposal of the government shareholding, that is, for the sale of 62.50% government-owned shares in the respondent No. 4 company being undertaken in keeping with the said provisions and culminating in the issuance of the Letter of Intent cannot be said to have been vitiated by any illegality.

 

Amin Khan (Md) vs Privatisation Commission and others 9 BLC 486.

 

Article 102

 

Since it is prima facie established that the petitioner company has made payment of entire duties and other charges to their appointed agent, who in collusion with the customs officials and others defrauded the Government it would cause undue economic hardship to the petitioner if they are to pay statutory deposit along with the appeal. During the pendency of the appeal before the Tribunal the respondent 1 has issued the impugned order suspending the commercial operation of the petitioner company under section 202(1) of the Customs Act read with section 56 of the VAT Act, 1991 which apears to be illegal and without jurisdiction and the respondent 3 was directed to hear and dispose of the appeal within six months from the date of receipt of the order without realising any portion of the disputed amount from the petitioner under section 194 of the Customs Act.

 

Lilac (Private) Ltd vs Commissioner of Customs and others 9 BLC 492.

 

Article 102

 

Admittedly, the petitioner was granted two licences in the years 1984 and 1985 respectively prior to the policy decision of the government and there has been no allegation that the petitioner has breached any condition of the licence, and that the licences have been renewed from time to time on payment of fees. The respondent has not taken any action pursuant to the provision of section 13 of the Customs Act. The petitioner had not been given any opportunity of being heard, no notice was served upon the petitioner asking to show cause as to why the items contained in Annexure K should not be excluded from the licence and hence there has been violation of the principles of natural justice. Before issuing the impugned order which purported to have transgressed the right of the petitioner to carry on lawful trade and business the petitioner was not heard. The policy decision of the government has got no binding force so far it relates to restricting the terms and conditions of the licence.

 

Portland Services Ltd vs Second Secretary, Customs (Import and Bond) and others 9 BLC 550.

 

Article 102

 

Since there is no provision in the Artha Rin Adalat Ain contrary to the provision of Order XLVII rule 1 of the Code of Civil Procedure, an application before the Artha Rin Adalat is competent under Order XLVII, rule l(l)(b) of the Code of Civil Procedure.

 

Abdus Samad vs Sonali Bank and others 9 BLC 554.

 

Article 102

 

The authorities made scrutinisation of the matter and with subjective satisfaction took the decision on the basis of the materials and declared respondent No. 8 as the best Chairman of the District by the impugned Notification which cannot be said that the decision taken by the Ministry is without any basis and malafide, rather, the decision of the respondents is based on sufficient scrutiny of the materials and the respondents being satisfied subjectly passed the impugned Notification, which is based on sufficient reasons.

 

Hafiznl Islam (Md) vs Secretary, Ministry ofLGRD and others 9 BLC 580.

 

Article 102Legitimate expectation—

 

The concept of legitimate expectation cannot be given such wide interpretation so as to allow any wishful hope without lawful root. In the instant case, it is found that as a result of mere recommendation of the name of the petitioner to the Government for selection as the best Chairman of Dinajpur District, he is said to have entertained an expectation not based on any legal ground, neither borne out by lawful begetting and, as such, his expectation, however firm it was, cannot be termed to be legitimate expectation.

 

Hafizul Islam (Md) vs Secretary, Ministry of  LGRD and others 9 BLC 580.

 

Article 102

 

It is clear that the Inquiry Officer entirely violated all the provisions as he did not follow the procedure as laid down in rule 10. Hence the action of the Inquiry Officer can definitely be considered as malice in law. When the law itself provides that an opportunity be given to the accused to cross-examine the witnesses, then no witness can be examined behind the back of the accused without giving him or her such an opportunity to cross-examine the witnesses.

 

Tapashi Bhattacharjee vs Bangladesh & others 9 BLC 613.

 

Article 102

 

By SRO 156 dated 12-6-1997 the CRF Certificate facilities were withdrawn with effect from 12-6-1997 for the goods having highest customs duties as per the said SRO. The imported goods have customs duties at the rate of 42.5% as stated by the said SRO and thereafter, the Customs Authority disregarded the CRF Certificate. The letters of credit were opened by the petitioners prior to the date of issuance of SRO 156 dated 12-6-1997. Inspection of the goods were done by the Pre-shipment Inspection Agency after 12-6-97 when they lost their authority to inspect the goods as a result of which any inspection done after the date of 12-6-1997 cannot be accepted by" the Customs Authority.

 

Rolex Corporation and ors vs Commissioner of Customs and others 9 BLC 664.

 

Article 102

 

The Rules of 1995 provide for reservation of 15% posts of Inspectors for Stenotypists, who have no other scope of promotion and such reservation cannot be said to have .taken away the vested rights of the petitioners. It appears from the impugned office order dated 7-1-2003 that the vested right of the petitioners was taken away for promotion to the post of Inspector of Taxes inasmuch as a new rule of seniority was introduced by the authority. The office order in question may operate prospectively and it may be applicable for newcomers who joined/will join in the aforesaid posts after, the office order is made. Thus, the said office order so far as it relates to clauses (Ka) and (Kha) thereof contained in Annexure 'F is ultra vires the Constitution.

 

Abdul Bari (Md) and 23 others vs Bangladesh represented by the Secretary, Internal Resources and others 9 BLC 678.

 

Article 102

 

The writ petitioner complying with the direction for making payment within six months from the date of service of the. letter dated 23-3-1992 discharged her duties and as such she cannot be punished for the alleged wrong, if any, committed by the Government. The actions of the State should generally be in favour of protecting the rights of the citizens and should not, in the state of affairs as in the instant case, be aimed at causing prejudice taking away such right.

 

Secretary, Ministry of Works, Government of Bangladesh vs Momtaz Begum and anr 10 BLC (AD) 39.

 

Article 102

 

The appellant bank has been able to prove the circumstances under which they could not file the affidavit-in-opposition during hearing of the writ petition. It appears from the Annexure L to the leave petition and the certified copy produced before the Appellate Division prima facie shows that late Serajuddin having transferred his title and interest in the property in question to Standard Bank by deed of conveyance dated 19-8-1965, the respondents at the time of filing the writ petition had no title at all to the property in question and hence the respondents without having title were not legally entitled to pray for a writ of mandamus for directing the Ministry of Works to mutate their names in the records.

 

Rupali Bank Ltd and another vs Shawkat Ara Salauddin and anothe 10 BLC (AD) 14.

 

Article 102

 

In the background of the materials on record it is seen that the respondent No. 2 was dismissed from the service of the appellant on the basis of the flawed departmental proceeding and criminal proceeding and consequently as the order of dismissal so made as was not legal the only conclusion that follows is that respondent No. 2 was not dismissed from the service of the appellant on August 21,1984. In that state of the matter the Labour Court was quite correct in making the order for reinstatement of the respondent No. 2 and for payment of back wages.

 

Pubali Bank Limited vs Chairman, First Labour Court and another 10 BLC (AD).

 

Article 102

 

It appears that under section 11 of the IRO appeal lies merely against an order of cancellation of registration under section 10 of IRO and no appeal lies against an order of rejecting of an application for cancellation of a registration of Trade Union and thus there being no scope of any appeal before the Labour Appellate Tribunal the appellant was entitled to invoke writ jurisdiction.

 

Standard Match Factory Ltd vs Chairman, First Labour Court and ors 10 BLC (AD) 99.

 

Article 102

 

The Appellate Division expunged the said disputed lines in the operative portion of the judgment making the Rule absolute and allowed the writ petitioner to market its beverages using the cans bearing trade mark of 'Crown' and 'Hunter' containing beverage within permissible limit in accordance with law.

 

Crown Beverage Ltd and another vs Board of Investment 10 BLC (AD) 108.

 

Article 102

 

The petitioner admitted that he failed to repay the loan. The petitioner also failed to assign any ground in support of the contention that under section 28 the plaint of the respondent No. 2 was liable to be rejected. Accordingly, the petition is dismissed.

 

AH Rizvi (Md) vs Bankruptcy Court and Additional District Judge and another 10 BLC (AD) 112.

 

Article 102

 

When a Mutwalli is removed under section 32(1) of the Waqf Ordinance he can file a suit or he can file a writ petition but once he filed a suit challenging such order and obtained a decree of rejection of plaint he cannot file writ petition keeping the order of rejection alive.

 

Abdul Jabbar Mondal (Md) vs Administrator of Waqfs and others, 10 BLC (AD) 118.

 

Article 102

 

Public interest litigation for preserving ecological balance—While deciding the leave petition the Appellate Division considered the public interest with regard to preservation of environmental and ecological balance and directed the RAJUK to maintain the Gulshan-Baridhara lake as per the layout plan.

 

Professor Dr Niaz Zaman vs Rajdhani Unnayan Kartripakhya and others 10 BLC (AD) 120.

 

Article 102Re-examination of answer script—

 

The contention that University calendar does not provide re-examination has not been substantiated by referring to the law or to the University calendar. As such, it is difficult to accept that the law and the calendar of the University is a hurdle to re-examination of the answer script.

 

University of Rajshahi, VC vs Md Abdul Mannan Bhuiyan 10 BLC (AD) 128.

 

Article 102

 

No material was placed on record to show that at any point of time additional amount as interest was demanded from the writ-petitioners. The writ-respondents could also not show that the writ petitioner No. 1 defaulted in the discharge of his obligations in having the lease deed in respect of the industrial plots allotted to him. In the background of the discussions made hereinabove the Appellate Division finds no substance in the petition.

 

 Bangladesh and others vs Sonear Laboratories Ltd and another 10 BLC (AD) 165.

 

Article 102

 

It appears that where a rule is not made ultra Constitutional or statutory authority, it is a mere administrative instruction having no force of law and since the said instruction has no force of law but mere Govt. notes and orders of the memo for official purposes only no legal right or vested right has accrued to the appellant to compel the Govt. by way of mandamus to carry out the instructions/circulars having no force of law.

 

Abdur Rahman (Md) vs Government of Bangladesh represented by the Secretary, Ministry of LGRD and Co-operatives and another 10 BLC (AD) 179.

 

Article 102

 

When a writ petition relating solely to terms and conditions of the service of a person in the service of the Republic is not maintainable before the High Court Division, the said Division would be in error, as in the instant case was in error, in entertaining the writ petition on the view that the Administrative Tribunal has no power to grant ad-interim relief and that in the absence thereof there is likelihood of causing mischief by taking certain action by the authority. This being the position, the High Court Division was in error in passing the ad-interim order restraining the authority from taking steps for the promotion of the Assistant Superintendent of Police to the post of Additional Superintendent of Police.

 

Khalilur Rahman, ASP SB, Dhaka vs Md Kamrul Ahsan 10 BLC (AD) 193.

 

Article 102

 

It is seen from the provision of section 6(1) of the Administrative Tribunal Act that an appeal lies from an order of the Administrative Tribunal. In the instant case the Administrative Tribunal refused the prayer for ad-interim order restraining the authority from granting promotion to the respondents. So the respondent Nos. 1-11 herein if were aggrieved by the order so passed by the Administrative Tribunal they were required as per provision of section 6(1) of the Administrative Tribunal Act to file appeal, if any, they would have thought fit. But instead of doing that they were not well advised to file the writ petition seeking the relief identical to the relief sought in the Administrative Tribunal case with the sole object of having an ad-interim order restraining the authority from taking steps for the promotion of the Assistant Superintendent of Police to the post of Additional Superintendent of Police.

 

Khalilur Rahman, ASP SB, Dhaka vs Md KamrulAhsan 10 BLC (AD) 193.

 

Article 102—The goods were inspected on the day when SRO Nos. 149 and 156 were issued. As such, the PSI agency did not lose its authority to inspect the goods since the withdrawal of facilities and inpection was on the same day. Considering such circumstances, a benefit can be given to the petitioners since his goods were inspected on the crucial day not subsequent to the said date and, as such, the imported goods are liable to be assessed under section 25A of the Customs Act on the basis of CRF certificate. Rolex Corporation vs Commissioner of Customs and ors 10 BLC 123.

 

Article 102

 

In spite of papers relating to ownership of the building and injunction order against government was in force the government on 23-9-1986 declared this property as abandoned property as per provision of Ordinance LIV of 1985. In such view of the matter, it is held that the petitioner's vendor Hazera Khatoon was in Bangladesh and she never left Bangladesh and hence the gazette notification enlisting the case property in "kha" list as abandoned property is without jurisdiction.

 

Abdur Rashid (Md) vs Court of Settlement and others 10 BLC 225.

 

Article 102Suppression of fact—

 

As the petitioner suppressed the material fact he is not entitled to invoke the writ jurisdiction. The original petitioner manufactured all papers in order to grab the disputed property. He not only practised fraud on the civil Court but also on the High Court Division. Substituted petitioners also practised fraud in prosecuting this case knowing fully well about the forgery of their predecessor. The learned Advocate for the petitioner, initially did not disclose the fact of filing the case before the Court of Settlement. The Rule is discharged with exemplary costs of Taka five lac.

 

Syed Anisur Rahman vs Government of Bangladesh & ors 10 BLC 283.

 

Article 102Writ of quo warranto—

 

A citizen is entitled to seek information in the nature of quo warranto against any person holding a constitutional office.

 

Abdus Salam Mamun, former Additional Judge, High Court Division, Supreme Court of Bangladesh vs Mr Justice Syed JR Mudassir Husain, Chief Justice of Bangladesh and ors 10 BLC 309.

 

Article 102

 

When a violation of provision of the Constitution is brought before superior Court it cannot decline relief on the plea of maintaining of high tradition.

 

Abdus Salam Mamun, former Additional Judge, High Court Division, Supreme Court of Bangladesh vs Mr Justice Syed JR Mudassir Husain, Chief Justice of Bangladesh and ors 10 BLC 309.

 

Article 102

 

On a reading of the letter of permission it appears that permission was given on certain conditions as mentioned therein. From the impugned order cancelling the permission it appears that there has been no allegation of violation of any of the conditions. Not only that no reason whatsoever has also been assigned in cancelling the permission. It is prima facie clear that the impugned order has been passed arbitrarily without assigning any reason whatsoever and in clear violation of the principle of natural justice and, as such, the same cannot be maintained.

 

 Inshipping (Private) Ltd vs Secretary, Ministry of Industry 10 BLC 350.

 

Article 102

 

The Police, as the law enforcing agency of the State, are to ensure that the law of the land is obeyed and followed by the general public. It is, therefore, not only a matter of utmost regret, but also of grave concern, when such acts of violation are committed by the police themselves. It is also a sad reality that although police excesses occur regularly, such incidents are rarely challenged in a court of law. The facts stated in the writ petition, being uncontroverted, are, therefore, deemed to be correct in the eye of the law. Quite clearly, the conduct of respondent No. 10 not only falls within the ambit of the term 'misconduct', it is also violative of the other provisions of the law. As such, the High Court Division has no hesitation in holding that the allegation of misconduct against respondent No. 10 has been established.

 

Brigadier (Retd) AHM Abdullah vs Government of Bangladesh 10 BLC 373.

 

Article-102Malafide and malice in law

 

The ground of pre-maturity for pendency of appeal as advanced from the side of Government will not operate as a bar to the maintainability of the writ petition. The turn of events suggests that the entire proceeding from the suspension of the Executive Committee upto its dissolution and the subsequent actions of the respondents concerned on the basis of an ex parte enquiry report in flagrant violation of principle of natural justice must be held to be malafide. Thus, the submission as advanced from the side of the petitioners that there was malice in law in passing the orders under challenge is accepted.

 

Suresh Chandra Haider and anr vs Government of the People's Republic of Bangladesh and others 10 BLC 433.

 

Article 102

 

The petitioner came to know about the inclusion of the said house in "Ka" list quite late in the day and accordingly her application under section 7 of the said Ordinance was not entertained by the Court of Settlement. Such explanation is quite satisfactory. There is therefore no bar for the petitioner to invoke the writ jurisdiction under Article 102 of the Constitution for necessary relief.

 

Shahida Begum vs Government of Bangladesh represented by the Secretary, Ministry of Housing and Works 10 BLC 476.

 

Article 102

 

Determination of the age of the petitioner is not a right secured or guaranteed within the meaning of section 34 of the Industrial Relations Ordinance, 1969.

 

Mozammel Haque Chowdhury (Md) vs Chairman, Labour Court and another 10 BLC 485.

 

Article 102

 

The term local authority has been defined in section 3(28) of the General Clauses Act. A local authority is amenable to the writ jurisdiction as provided in Article 102 of the Constitution. Since the Government is the instrumental to the formation of respondent No. 5, RFC Limited, controlling its affairs and since RFC Limited is using the public fund in discharging its public duties it is crystal clear that RFC Limited is a local authority as defined in Article 102 of the Constitution and being a person within the meaning of Article 102(5) of the Constitution is amenable to the writ jurisdiction and, as such, the instant writ petition is squarely maintainable.

 

Abdus Sabur (Md) vs Rural Electrification Board and others 10 BLC 502.

 

Article 102

 

The petitioner's status as Managing Director in respondent No. 5, RFC Limited is clearly different from the definition of Managing Director as enunciated in section 2(m) of the Companies Act, 1994. Although the petitioner by virtue of Clause 76(B)(3) of the Articles of Association of RFC Ltd has voting right in the Board of Director nevertheless this does not make him a director of the Company as defined in section 91(i)(a) of the Companies Act, 1994 for him to come under the definition of Managing Director as defined in section 2(m) of the Companies Act, 1994. Hence the Company Law is not applicable in respect of the petitioner.

 

Abdus Sabur (Md) vs Rural Electrification Board and others 10 BLC 502.

 

Article 102

 

From a cursory view of the Memorandum of Association of the petitioner company namely, Article Nos. 1, 2,3 and 9-14 it appears that the company is authorised to carry on its economic activity throughout Bangladesh and also in various countries and therefore it appears that admittedly at least for the time being they are carrying on business throughout Bangladesh and beyond the territory of the hill districts. Therefore, the VAT Act and the Income Tax Act, in any view of the matter, are applicable to the petitioner company.

 

Rangamati Food Products Ltd vs Commissioner of Customs and others 10 BLC 524.

 

Article 102

 

The Rangamati Hill District along with Bandarban and Khagrachari Hill Districts (erstwhile Chittagong Hill Tracts) ceased to be a tribal area under the 1962 Constitution of Pakistan as well as under our Constitution and in that view of the matter the observation given in 6 BLC's case that the Regulation No.l of 1900 is still valid appears to be erroneous. It is therefore, the Regulation No.l of 1900 had no manner of Article 102—Determination of the age of the petitioner is not a right secured or guaranteed within the meaning of section 34 of the Industrial Relations Ordinance, 1969.

 

Mozammel Haaue Chowdhury (Md) vs Chairman, Labour Court and another 10 BLC 485.

 

Article 102

 

The term local authority has been defined in section 3(28) of the General Clauses Act. A local authority is amenable to the writ jurisdiction as provided in Article 102 of the Constitution. Since the Government is the instrumental to the formation of respondent No. 5, RFC Limited, controlling its affairs and since RFC Limited is using the public fund in discharging its public duties it is crystal clear that RFC Limited is a local authority as defined in Article 102 of the Constitution and being a person within the meaning of Article 102(5) of the Constitution is amenable to the writ jurisdiction and, as such, the instant writ petition is squarely maintainable.

 

Abdus Sabur (Md) vs Rural Electrification Board and others 10 BLC 502.

 

Article 102

 

The petitioner's status as Managing Director in respondent No. 5, RFC Limited is clearly different from the definition of Managing Director as enunciated in section 2(m) of the Companies Act, 1994. Although the petitioner by virtue of Clause 76(B)(3) of the Articles of Association of RFC Ltd has voting right in the Board of Director nevertheless this does not make him a director of the Company as defined in section 91(i)(a) of the Companies Act, 1994 for him to come under the definition of Managing Director as defined in section 2(m) of the Companies Act, 1994. Hence the Company Law is not applicable in respect of the petitioner.

 

 Abdus Sabur (Md) vs Rural Electrification Board and others 10 BLC 502.

 

Article 102

 

From a cursory view of the Memorandum of Association of the petitioner company namely, Article Nos. 1, 2,3 and 9-14 it appears that the company is authorised to carry on its economic activity throughout Bangladesh and also in various countries and therefore it appears that admittedly at least for the time being they are carrying on business throughout Bangladesh and beyond the territory of the hill districts. Therefore, the VAT Act and the Income Tax Act, in any view of the matter, are applicable to, the petitioner company.

 

Rangamati Food Products Ltd vs Commissioner of Customs and others 10 BLC 524.

 

Article 102

 

The Rangamati Hill District along with Bandarban and Khagrachari Hill Districts (erstwhile Chittagong Hill Tracts) ceased to be a tribal area under the 1962 Constitution of Pakistan as well as under our Constitution and in that view of the matter the observation given in 6 BLC's case that the Regulation No.l of 1900 is still valid appears to be erroneous. It is therefore, the Regulation No.l of 1900 had no manner of application in the then- East Pakistan on and from 10-1-64 and it is not applicable today under the present Constitution of Bangladesh. It has however wrongly been followed by the Executive of the State due to mistaken ideas.

 

Rangamati Food Products Ltd vs Commissioner of Customs and others 10 BLC 524.

 

Article 102

 

If section 193 or section 196 is read with sections 192 and 201 it will appear to us that in the facts and circumstances of the instant case the appellate forum provided by the Customs Act does not appear to be an efficacious remedy because if the petitioner is forced to go before the appellate forum he may be forced to go out of business when the appeal is disposed of beyond 45 days. Therefore, the appellate forum, in the instant case, does not appear to be an appropriate and efficacious remedy.

 

Abdullah-al-Rashid vs Customs House, Chittagong and other 10 BLC 541.

 

Article 102

 

There is no denial of the fact that on both the occasions, that is, on 10-4-2001 and 15-4-2001 by the impugned orders bearing serial Nos. 34 and 38 respectively, the respondent Nos. 2 and 3 have refused to furnish certified/duplicate copies of the documents applied for by the petitioner. It thus appears that the respondent N6s.2 and 3 took the authority to decide the issue as to whether a party should move the High Court Division or the appellate authority being aggrieved by an order passed by them. Thus the refusal on the part of the respondent Nos.2 and 3 is patently illegal and without jurisdiction. It also appears to be malafide.

 

Abdullah-al-Rashid vs Customs House, Chittagong and other 10 BLC 541.

 

Article 102

 

No show cause notice was issued to the petitioner in accordance with law prior to cancellation of the lease. Moreover, the lease was cancelled quoting section 27C of the Rules of 1968 which is totally unconnected with cancellation of the lease. Such action on the part of respondent No. 3 is strongly deprecated.

 

Concord Engineering vs Government of. Bangladesh and others 10 BLC 549.

 

Article 102

 

The legislation has provided that in the public interest at any time the Parliament can place a goods in the third schedule of the Act of 1999 for the purpose of imposition and collection of supplementary duty and in the instant case all the three letters of credit were opened in 1999, as such, this amendment which has been brought about after the opening of the letters of credit in question need not advert to that part of section 7(1) of the Act as these Rules can be disposed of without adverting to that aspect of the law.

 

KY Steel Mills Ltd vs Commissioner, Customs, Excise and VAT and others 10 BLC 553.

 

Article 102

 

In view of the position of law as it stands today i.e. after introduction of section 30A in the Customs Act, no one can come before this Court and invoke either the doctrine of vested right or promissory estoppel in the event of an express provision as contained in the Act as there cannot be an estoppel against the law. Therefore, in view of the provisions as contained in the Act the High Court Division arrived at the conclusion that in the instant case the petitioners are liable to pay supplementary duty pursuant to the provisions of SRO No. 45 dated 14-2-2000 and also pursuant to the then provision of section 109 of the Customs Act. The provisions as contained in section 7(1), (2) and (3) of the VAT Act read with the then section 109 of the Customs Act which was in force at the relevant time, it appears that the duty which was prevalent on the date of submission of bill of entry for clearing in-bond goods for home consumption rate of duty is the rate which is prevalent on the date of submission of the bill of entry for ex bond.

 

KY Steel Mills Ltd vs Commissioner, Customs, Excise and VAT 10 BLC 553 .

 

Article 102

 

It appears that the suit instituted by the plaintiff organisation (Proshika), an NGO, before the Artha Rin Adalat is not maintainable and, as such, the proceeding and the impugned orders passed by the Artha Rin Adalat are without jurisdiction and without lawful authority. The proceeding before the Artha Rin Adalat in Money Suit No. 1 of 1998 is hereby struck down.

 

 Khet Majur Purush Samity, Madhabpasha and others vs Proshika (Human Development Centre), and another 10 BLC 617.

 

Article 102

 

The High Court Division finds that the respondent No.l Corporation and the Government are now estopped from denying the petitioners their opportunity to opt for usual retirement as assured them on 17-11-1999. Accordingly, the High Court Division views the impugned notification in Annexure-A to be the product of an opaque process constituting a deviation from a regular practice of prior consultation. The impugned notification as consequently formulated also makes a sudden deviation from the established service and benefit policy enunciated on 17-11-1999 and thereby negates the petitioners' legitimate expectation to be treated fairly and consistently with the notification dated 17-11- 1999. In this regard, the High Court Division finds merit in the petitioners' contention that the impugned notification is to be deemed as having been passed without lawful authority and to be of no legal effect.

 

BADC Employees Union and others vs BADC and others 70 BLC 643.

 

Article 102Absence of giving second show cause notice—Effect of—

 

The entire proceedings of inquiry and investigation as initiated against the petitioner has in the result been vitiated for want of supply of a copy of the inquiry report along with the second show cause notice dated 19-6-1997. The High Court Division holds further that the petitioner being seriously prejudiced by such inquiry report not being furnished her, the punishment meted out in the form of removal from service and order for refund of Taka 6,14,084.20 cannot be deemed to have been passed legally in the facts and circumstances of the case and therefore, the impugned orders are hereby declared to have been passed without any lawful authority and to be of no legal effect.

 

Nazma Akhtar vs GM, Rural Electrification Board 10 BLC 667 .

 

Article 102

 

It appears that the Labour Court below, in view of the facts and circumstances of the case failed to appreciate the contemplations of the aforesaid sectidh 25 of the Act and thereby arrived at an erroneous decision in dismissing the Complaint Case as being not maintainable under section 25 of the aforesaid Act and, as such, the same is not sustainable in law.

 

Shamsur Rahman vs Chairman, First Labour Court 10 BLC 716.

 

Article 102

 

The admitted position is that the amount of penalty of Taka 5 lac and odd was reduced to 3 lac and odd by the Appellate Tribunal against which the department did not move the higher forum. Therefore, the order given by the Appellate Tribunal reducing the penalty reached finality. The respondent Nos. 1-4 are directed to refund the amount of Taka 2,65,755 to the petitioner within l(one) month from the date of receipt of the order.

 

Seacom Shipping Ltd vs Commissioner of Customs and others 10 BLC 719.

 

Article 102

 

Immediately upon being permitted to sign the attendance register on that date the petitioner came to be governed by the terms and conditions of service as well as of termination and release from service as enumerated in the letter of appointment dated 31-5-2001. Failure to detect at a prior date represents a negligence on the part of the appointing authority considering that the production of the certificate constitutes a specific condition for joining expressly spelt out in clause (Ja) of the letter of appointment dated 31-5-2001. In that view of the matter, it was indeed, incumbent upon the respondents to so detect the possible lapse prior to permitting the petitioner to join in service. The impugned Order under Annexure-'L1 in the terms that it has actually been issued. In this regard, the respondents have not contested the fact that the petitioner did indeed, eventually secure the issuance of the requisite certificate (Annexure-'I-4'). Accordingly, against this backdrop, the impugned Order has indeed, been issued without lawful authority and is to be deemed to be of no legal effect.

 

AHM Mahabubar Rashid vs Bangladesh and others 10 BLC 760.

 

Articles 102 and 105

 

High Court Division in making the direction to the respondent No. 2 to offer one of the remaining phases of contract to the respondent No. 1 did neither modify-the original contract for which the bids were invited or in other words has not substituted a contract different from the original contract nor has acted as an arbiter in making the order for issuing letter of intent to the respondent No. 1 for one of the remaining phases of the contract since the said direction has been made in the light of resolution taken by the respondent No. 2 and it also considered the irregularity committed in selecting the petitioner as one of the responsive technical bidders.

 

Micro Electronics Ltd vs Rahimafroz Batteries Ltd and others 8 BLC (AD) 47.

 

Articles 102, 105, 110, 115, 116, 116A, 133, 136, 137 and 140

 

The Articles 114, 115, 116 and 116A of the Constitution clearly and unequivocally demonstrate that persons in the Judicial Service exercising judicial functions are not only distinet but also separate from the executive and administrative personnel. There is no impediment in the Constitution for reding up of a separate public service commission for Judicial Service. Article 133 cannot be invocate for the judicial officers as there are provision for them in the Article 115 and 116 of the Constitution. The Judicial officer are not persons in the service of the Republic for the purpose of Article 133 and hence the Rules regarding their appointment and conditions of service cannot be framed under Article 133 of the Constitution.

 

Secretary, Ministry of Finance and others vs Md Masdar Hossain and ors 7 BLC (AD) 92.

 

Articles 102 and 108

 

There being a decision on 1-7-1970 to allow running allowance benefit to the TTEs and in Writ Petition No. 2268 of 2000 there being specific direction for extending such benefit to the TTEs, the Railway Authority is obliged to extend the benefit of the decision to all such employees including those who have retired and those who have not joined as petitioners in the aforesaid writ petition if, however, they were on roll on and from 1-7-1970. The plea of non­availability of the detailed particulars at the hands of the authority in respect of the retiring TTEs for execution of the direction given by the High Court Division is absolutely an evasive one and cannot be accepted as a valid ground.

 

AFM Mustsafizur Rahman, DG, Bangladesh Railway and others vs Manoharan Mazumder and ors 9 BLC (AD) 207.

 

Articles 102, 115 and 116

 

The petitioner himself submitted to the jurisdictions of the Court for adjudication of the dispute or claim without having raised any jurisdictional claim. The decree is now at the execution stage and at this stage the petitioner cannot question the jurisdiction of the Artha Rin Adalat. All the Subordinate Judges were appointed by the President and the judges of the Artha Rin Adalat was appointed by the Government in consultation with the Supreme Court and accordingly, the judges of the Artha Rin Adalat are functioning and exercising the jurisdiction under that Ain.

 

Mofij Mia (Md) vs Government of Bangladesh and others 10 BLC 229.

 

Articles 102 and 116

 

Since in the Notification dated 1-1-2004, there is clear indication that consultation has taken place with the Supreme Court prior to the transfer and appointment of the named presiding Judges to the Artha Rin Adalats, the Jurisdiction of the Adalats cannot be questioned, as the suits were filed in the respective Adalats after the said notification was issued the proceeding are valid in law. Therefore, there is no legal flaw or defect in the appointment of the Judges of the Artha Rin Adalat and the proceedings of the suit are competent under the law.

 

Idris Miah (Md) vs Bangladesh and others WBLC728.

 

Articles 102 and 117

 

Since the writ petitioners and the respondent-applicants are admittedly in the service of the Republic and the issue involved in the writ petition, that is, impugned order is the order of promotion, which relates to the terms and conditions of the service, the same has to be decided by the Administrative Tribunal because such exclusive jurisdiction has been given to the Administrative Tribunal under Article 117 of the Constitution and, as such, the writ petition cannot be maintained.

 

Rezaul Karim (Md) vs Government of Bangladesh 10 BLC 255.

 

Articles 102 and 117Malafide— Judicial Review—Malice in Law

 

Every writ petition with an allegation of malafide may not give jurisdiction to the High Court Division if that allegation is required to be decided on the basis of evidence and in such a case the proper forum will be the Administrative Tribunal but if the allegation is only about malice in law and if such allegation can be decided without deciding any disputed question of fact, and if it is apparent from the action itself that there is malice in law, then the High Court Division definitely can assume jurisdiction under Article 102 of the Constitution.

 

Tapashi Bhattacharjee vs Bangladesh & others 9 BLC 613.

 

Articles 102 and 117

 

Even if the gradation list has the force of law concerning the terms and conditions of the service of the petitioners it would not enable the petitioners to seek remedy under the writ jurisdiction because the Constitution requires them to take recourse to specific remedy as provided in Article 117 of the Constitution before the Administrative Tribunal. Moreso, the petitioners have not challenged the vires of the law, rather they challenged an action taken in relation to them affecting the terms and conditions of their service and, as such, the writ petition is not maintainable.

 

Majibur Rahman (Md) and ors vs Secretary of Ministry of Social Welfare Government of the People's Republic of Bangladesh and others 7 BLC 120.

 

Articles 102 and 140

 

The order of dismissal having been made in violation of the provision of section 5 of the Ordinance of 1979 on that score also the same is not maintainable in law.

 

Qamrul Islam Siddique vs Saber Ahmed and another 9 BLC (AD) 212.

 

Articles 102 & 152—Yellow Book Value

 

It is contended on behalf of the petitioner that Yellow Book Value is a stranger to the Customs Act, 1969 and not recognised by the Customs Act as a method of assessing customs duties.

 

In interpreting Article 152 of the Constitution "Law" means any Act, Ordinance, order, rule, by-law, notification or other legal instrument, and any custom or usage, having the force of law in Bangladesh, the High Court Division has found that the standing orders, SRO, have their forces of applicability as law and Yellow Book Value was applicable in the case of the petitioner as mode of assessment of customs duties. Since the Yellow Book Value was applicable to the consignment of the petitioner as basis of assessment of duties and charges, the petitioner was directed to pay the balance duty to the respondents.

 

Sabedur Rahman (Md) vs Commissioner of Customs and others 8 BLC 325.

 

Articles 102 and 152

 

The "Local authority" includes a Corporation established by the government under any law. The Bangladesh Fertilizer Chemical and Pharmaceutical Corporation having been established by the government under President's Order No. 27 of 1972 and the genuine Fertiliser Company being a functionary under it, a writ petition under Article 102 of the Constitution is quite maintainable against it.

 

Zaharuddin (Md) vs Bangladesh and others 6 BLC 712.

 

Article 102(a)(i)

 

The petitioner neither served any notice demanding justice nor did he raise any objection to the respondents against the electric bills and thus there is laches on the part of the petitioner and, as such, the petitioner is not entitled to get any relief under Article 102 of the Constitution as he has not done his part of his duties before coming to the High Court Division.

 

Moudud Ahmed vs Chairman, Dhaka Electric Supply Authority (DESA) and others 9 BLC 140.

 

Article 102 (1) & 102 (2) (a) (l)

 

 Petitioner has challenged the impugned advertisement in so far it relates to recruitment of the one Principal Engineer (Chemical) and for direction to consider the case of the petitioner for promotion to the post of Principal Engineer of the Council whereupon the Rule Nisi was issued. The petitioner has all the requisite qualification and experience for getting promotion to the post of Principal Engineer and he also applied for such promotion but his case was not considered and hence, the impugned advertisement published by respondents is declared to have been issued without lawful authority and is of no legal effect. Accordingly, the respondents are directed to consider the petitioner's case for promotion to the post of Principal Engineer (Chemical) in accordance with law.

 

M Abu Raihan vs Secretary, Ministry of Science and Technology, Bangladesh Secretariat and others 7 BLC 44.

 

Article 102 (2), 117(2)

 

It is apparent that an ad-hoc appointee must not only appear at the first available examination/ interview but also get the recommendation at the first chance, which is the sound interpretation of the words Otherwise, as per previous interpretations of Rules of 1990 there would not be any end to appearances of the ad-hoc appointees who would appear before the PSC at their sweet will and would get the seniority from the date of their ad-hoc appointments upsetting the seniority list all the time. The fundamental rights of writ petitioners, guaranteed by the Constitution under Articles 27 and 29 have not been infringed or violated by the impugned decisions. There was no violation of fundamental right as alleged and the High Court Division acted illegally in declaring the impugned order dated 27-9-1998 and the impugned decisions as taken in the meeting of the standing Committee containing the minutes and of the gradation list published in Bangladesh Gazette to be unconstitutional or void or without any lawful authority.

 

Government of Bangladesh and others vs Md Abdul Halim Miah and others 9 BLC (AD) 134.

 

Article 102(2) (a) (ii)

 

The moot point is whether notwithstanding the provision of the Chittagong Hill Tracts Regulation, 1900 the Land Appeal Board Act, 1989 and the rules made thereunder shall apply to Chittagong Hill Tracts or not. As the Chittagong Hill Tracts Regulation, 1900 has got no special status or sanctity which can be subject to any law passed by the Parliament. It is a territory like any other territory of Bangladesh. The existence of Chittagong Hill Tracts Regulation, 1900 is like any other law of the country and subject to law passed by the Parliament. Section 3 of the Land Appeal Board Act, 1989 provides that the provisions of the Act and the rules made thereunder will prevail over any existing law and therefore, in case of any conflict the provisions of the Act will prevail. The Constitution of Bangladesh is of unitary type providing no special status to any territory including Chittagong Hill Tracts and hence the law of Bangladesh is applicable to Chittagong Hill Tracts also. Hence, the respondent 1, Land Appeal Board, has jurisdiction to hear the appeal against or reverse the judgment and order passed by the Commissioner, Chittagong Division in respect of khas land of the Chittagong Hill Tracts in accordance with the provision of Land Appeal Board Act, 1989 and the rules framed thereunder notwithstanding with the provision of the Chittagong Hill Tracts Regulation, 1900.

 

Bikram Kishore Chakma vs Member, Land Appeal Board and others 6 BLC 436.

 

Article 102(2)(a)(ii)

 

The wholesale suspension undoubtedly runs counter to the provisions of section 9(1) of the Ordinance of 1961. So, the amended impugned order was not passed in accordance with the provisions of section 9(1) of the said Ordinance and the respondent No. 2 exceeded his jurisdiction in passing such order and it is bad in law too.

 

Suresh Chandra Haider and anr vs Government of the People's Republic of Bangladesh and others 10 BLC 433.

 

Article 102(2)(a)(ii)—Principle of natural justice

 

Although there is no express provision of issuance of any show cause notice in section 9(3) of the Ordinance of 1961' prior to dissolution of the Governing Body of any agency, but in view of principle of natural justice as enunciated by the Apex Court, issuance of show cause notice is a must prior to dissolution of the Government Body, even if there is no express provision therefor in the said Ordinance.

 

Suresh Chandra Haider and anr vs Government of the People's Republic of Bangladesh and others 10 BLC 433.

 

Article 103

 

Whether the polls in 7 Centres of Munshiganj-4 Constituency were at all interrupted or not and whether the same was for the reasons beyond the control of the Presiding Officers and that it could not resume during the polling hours could only be decided taking evidence before the Tribunal in the event of any application before the Election Tribunal by any party to the election. On being reported about the obstruction and interruption and that the poll has been stopped the Election Commission ordered for re-election in those centres as the entire election process has to be completed by the Election Commission in order to promote the cause of democracy. The disputed questions of fact that emerged in this leave petition is also beyond the scope and cannot be decided in this jurisdiction. There is no illegality in the impugned order or any arbitrary exercise of power which is malafide or that the memo was issued to circumvent the provision of law resulting in malice in law or want of jurisdiction resulting in coram non-judice as alleged by the petitioner but pursuant to memo dated 1-10-01, fresh poll was ordered in 7 centres including 3 centres under the provision of Article 25(2) of the Representation of the People's Order.

 

Mohiuddin Ahmed (Md) vs Chief Election Commissioner and others 7 BLC (AD) 172.

 

Article 104

 

In view of rule 143(1)(2) of the Power Development Board (Employees) Service Rules, 1982, the High Court Division erred in law in holding that the respondent is entitled to get another show cause notice by the authority to submit written defence to them as per sub-rule (2) of rule 143 and that not having been given there was gross violation of the said rule. But in the facts and circumstances of the case the factual aspect of the case having been found in favour of the respondent as elaborately discussed by the High Court Division holding that factually there is no justification for imposing any penalty on the respondent, in order to secure the interest of justice and do complete justice the impugned judgment warrants no interference.

 

Chairman, Power Development Board and others vs Md Fazlul Haque 7 BLC (AD) 122.

 

Article 104

 

As it appears the copy of the certified copy of the deed of conveyance dated 19-8-1965 has been annexed as Annexure-L to the leave petition and during hearing Mr Mahmudul Islam produced before the Appellate Division the certified copy thereof, the application for the above certified copy was filed on 13-7-93 and the Sub-Register Central Record, Karachi certified the copy on 4-8-93 and the signature of the Sub-Registrar Central Record was attested by the Protocol Officer, Ministry of Foreign Affairs, Government of Pakistan Camp Office, Karachi as well as by Mr Golam Mohammad, First Secretary, Office of the Deputy High Commissioner for Bangladesh at Karachi. Section 79 of the Evidence Act provides that the Court shall presume such certified copy as genuine. Such certified copy of the said deed of reconveyance as produced by the appellant was taken into consideration by the Appellate Division as additional evidence.

 

Rupali Bank Ltd and another vs Shawkat Ara Salauddin and anothe 10 BLC (AD) 14.

 

Article 104

 

Ther is no scope for regularisation of the service of the appellant as there is no existence of such regular posts and more so, when a project has already been ceased to exist to grant any relief by exercising the discretion under Article 104 of the Constitution for doing complete justice.

 

Abdur Rahman (Md) vs Government of Bangladesh represented by the Secretary, Ministry of LGRD and Co­operatives and another 10 BLC (AD) 179.

 

Article 105

 

Dispute that arose between the parties as to the payment for the works executed by the petitioner was a matter for arbitration as provided in the tender document itself and that writ forum was in no way proper forum to have his grievance redressed.

 

Asaduzzaman Sikder (Md) vs Bangladesh Power Development Board and others 10 BLC (AD) 151.

 

Article 105

 

Since no error apparent on the face of the judgment in any respect has been pointed out and that no new material having been placed in support of the prayer for review, the prayer for review is of no merit.

 

Nasir Ahmed Chowdhury vs Chairman, Bangladesh Textile Mills Corporation 10 BLC (AD) 162.

 

Article 105

 

A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. A review lies where an error apparent on the face of the record exists. It is not a re-hearing of the main appeal.

 

Review is not intended to empower the Court to correct a mistaken view of law, if any, taken in the main judgment. It is only a clerical mistake or mistake apparent on the face of the record that can be corrected by the leave but does not include the correction of any erroneous view of law taken by the Court. Since this Court in its judgment dated 2-12-1999 has considered the grounds of this appeal and since we find that there is no error apparent on the face of the record we do not find any reason to reconsider direction Nos. 4 and 6.

 

Secretary, Ministry of Finance and others vs Md Masdar Hossain and ors 7 BLC (AD) 92.

 

Article 105

 

The decision given by the Appellate Division in appeal may be wrong on points of law, yet such decision does not call for review of a judgment unless the decision is on a question of great public importance laying down a bad law.

 

Manaj Kumar Roy Chowdhury and others vs Government of Bangladesh and others 7 BLC (AD) 42.

 

Article 108

 

Contempt of Court-Appellate Division directed Contemner Chowdhury Ataur Rahman and the Publisher and the Editor of the daily newspaper namely 'Sylheter Dak' to show cause as to why they should not be convicted and sentenced for committing contempt of court for publishing the photograph of the Hon'ble Chief Justice with the photograph of Chowdhury Ataur Rahman, Advocate. Unqualified apology tendered by the publisher and editor were accepted while the unqualified apology of the said Advocate was accepted subsequently considering his enrollment as an Advocate in 1995 and giving warning that he shall behave properly in future.

 

Registrar, Supreme Court of Bangladesh vs Chy Ataur Rahman Azad and ors 6 BLC (AD) 79.

 

Article 117

 

When it appears that the impugned order of cancellation of LPR dated 8-10-95 is ex facie arbitrary and without jurisdiction against which the petitioner is entitled to seek remedy invoking the writ jurisdiction of the High Court Division notwithstanding the alternative remedy is available to the petitioner under Article 117 of the Constitution, the forum of the Administrative Tribunal.

 

Abdul Awal 'Munshi (Md) vs Bangladesh Water Development Board and others 6 BLC 463.

 

550

Town Improvement Act, 1953

Citation: 7 BLC (AD) 167, 9 BLC 203, 9 BLC (AD) 56

Case Year: 1953

Subject: Town Improvement Act, 1953

Delivery Date: 2018-05-28

Town Improvement Act, 1953

[XIII of 1953]

 

Section 40

 

Respondent had no vested legal right to have open space between her house and the lake. There is no papers to show that the lake has been or is being filled up for the project. The narrow strip of vacant land which is being converted into plots is only an extension/addition of Gulshan residential plots by altering the layout plan, and would not adversely affect the environment of Gulshan or destroy the greeneries or the lake and that there has been no change of the master plan either and hence the impugned judgment and order of the High C^urt Division is set aside.

 

Chairman, RAJUK and others vs Parvin Akhter 7 BLC (AD) 167.

 

Section 54

 

On scrutiny of the original layout plan, it appears that the amenities such as park, playground, school, mosque, etc. are clearly marked in the map itself. The open space in front of Road No. 20 does not appear to have been marked for any such purpose. The benefit of the open space in front of the petitioner's plot was a momentary fortuitous benefit, which has been taken away for the greater benefit of the community at large, which is for the provision of extra plots necessary to meet demands of the population. There is no evidence that the lake has been reduced in size. On the other hand, the new road will provide a promenade overlooking the lake, which will be for the enjoyment of all the residents in the locality. The land in question was not earmarked for any civic amenity nor was the lake encroached upon. Accordingly, the Rules were discharged.

 

Mahmuda Parveen and anr vs Chairman, RAJUK and others 9 BLC 203.

 

Section 93A(4)(h)

 

As per provisions of section 93A(4)(h) of the Town Improvement Act, 1953, there is absolutely no scope for any release of the requisitioned property by the Government. Apart from the provision under section 8B of the Emergency Requisition of Property Act, 1948 for withdrawal from acquisition, there is no provision in law for release of the property as has been claimed by the petitioners as the land has been admittedly requisitioned with a view to acquire the same for Greater Dhaka Development Project by the RAJUK under specified project. Mere non-use of the acquired land for the purpose for which it was acquired will not give any right to get return of the same. Non-payment of compensation also is no ground for release of the land acquired under the provision of Emergency Acquisition of Property Act, 1948 or Town Improvement Act, 1953.

 

Abdul Huq and others vs Secretary, Ministry of Land and others 9 BLC (AD) 56.

551

Trade Marks Act, 1940

Citation: 7 BLC 146, 10 BLC 289, 9 BLC 4, 9 BLC 641, 10 BLC 333, 6 BLC (AD) 109, 10 BLC 314, 9 BLC 557, 7 BLC 148, 6 BLC 522,

Case Year: 1940

Subject: Trade Marks Act, 1940

Delivery Date: 2018-05-28

Trade Marks Act, 1940

[V of 1940]

 

Sections 4(2-A)(2-B) and 76

 

As the Registrar had not delegated any such power and function to the Assistant Registrar as prescribed by section 4(2-B) of the Trade Marks Act, 1940, the order passed by the Assistant Registrar is coram non judice and without jurisdiction. Accordingly, the matter was sent back to the Registrar of Trade Marks for disposal in accordance with law.

 

Ardath Tobacco Company vs Registrar of Trade Marks & others 7 BLC 146.

 

Section 8(a)

 

Both the parties, namely, the appellant as well as respondent No. 3 contend that both of them have been using the mark since 1982 but no evidence has been adduced by either party in support thereof nor the Assistant Registrar did advert to that aspect of the case and this pertinent question ought to have been considered and decided by the Assistant Registrar in disposing the opposition case. Ends of justice would be served if the opposition Case No. 794 of 1991 is heard along with the Trade Mark Application filed by respondent No. 3 by the Registrar as per law.

 

TOA Paint (Thailand) Co Ltd vs Registrar of Trade Marks and others 10 BLC 289.

 

Sections 8(a) and 10(1)

 

There is nothing on record to show as to whether any opportunity of being heard was given to the appellant against the amended mark. It is a fit case which should be remanded to the Registrar for examining the record to ascertain if any opportunity of hearing was given to the appellant before acceptance of the amended mark and if it is found that no opportunity of hearing was given to the appellant the Registrar is directed to give an opportunity to the appellant of being heard on the amended mark and then to dispose of the matter in accordance with law.

 

Seven Up Company USA vs Abdur Rahim Mollah & another 9 BLC 4.

 

Sections 10(1), 13(3) and 16(1)

 

Since admittedly, the Registrar is invested with the power to rectify an error, he did not commit any illegality in the instant case in correcting his earlier mistake after hearing both the interested parties. In the facts and circumstances of the case, the presence of the respondent No. 1 did not vitiate the impugned order and the appellant has not been prejudiced in any way as he had all the opportunities to place his case and admittedly the mark applied for by the appellant is identical to the registered mark of the respondent No. 1.

 

Sukkur Miah (Md) vs Md Shams'uddin Khan 9 BLC 641.

 

Section 10(2)

 

During the pendency of the appeal the mark has been registered in class-25 in favour of the respondent No. 1 and because of that the appeal has become infructuous as there is no scope for registering the mark under section 10(2) of the Act as the appellant could not make out any case of concurrent user of the mark as has been found by the High Court Division and, that there is no infirmity calling for interference.

 

Sunil Kumar Das vs CANON Kabushiki Kaisha and another 10 BLC (AD) 92.

 

Section 37

 

It appears that the trade mark relates to cosmetics but it is not clear from the materials on record whether manicure and toilet preparation includes cosmetic products and that aspect of the case was not considered by the Registrar in disposing of the case. Thus it is a fit case which should be remanded to the Registrar to dispose of the rectification case in the light of the observation made above.

 

Cheesebrough Ponds Inc vs Mousumi Industries Ltd 10 BLC 333.

 

Section 46

 

The point on maintainability of the proceeding pending before the High Court Division cannot be decided on interlocutory matter. The impugned order of stay appears to have been passed on sound ground which call for no interference.

 

Abul Hussain (Md) vs Md Solaiman AH & another 6 BLC (AD) 109.

 

Sections 46 and 70(c)

 

Admittedly, the rule 23 was not complied with in the instant case nor the Rule 24 read with section 70(c) of the Act. The mark of the opposite party No. 2 was registered in flagrant violation of the Rules 23 and 24 of the Rules of 1963 and section 70(c) of the Act of 1940.

 

Abdul Matin vs Registrar of Trade Marks and another 10 BLC 314.

 

Sections 46 and 70(c)

 

It is established beyond doubt that in granting registration of the mark of the opposite party No. 2 the application for the self-same mark filed earlier by the petitioner was not taken into consideration and no notice was served upon the petitioner. Therefore, it is apparent and obvious that the mark of the opposite party No. 2 has been registered illegally and without proper scrutiny. Hence the mark is liable to be expunged from the registry.

 

Abdul Matin vs Registrar, Trade Marks and another 9 BLC 557.

 

Sections 70 and 76

 

It is crystal clear from the record that the opponent was allowed more than ope month's time for hearing but hearing was avoided by him without any rhyme or reason till passing the impugned order by the Registrar of Trade Marks. The rejection of the opposition case as well as the application for adjournment do not come within the mischief of section 70 of the Trade Marks Act, 1940 or within the purview of the Rule 77 framed thereunder. The Registrar after dismissing the evidence adduced by the opponent in respect of the opposition case came to a finding that the respondent was using the Trade Mark Teen Teer' in respect of his Atta, Maida and Suji and further found that the opponent could not adduce any reliable evidence in support of his case and such findings are being findings of fact cannot be disturbed. The Registrar did not commit any illegality in rejecting the opposition case and allowing the application for registration of the Trade Marks of the respondent.

 

Mahboob Hossain (Md) vs Registrar of Trade Marks 7 BLC 148.

 

Section 70(c)

 

After the order dated 14-8-1993 passed by the Registrar rejecting the prayer for extension of time the Registrar ought to have fixed a date for hearing of the case giving the parties notice as envisaged under section 70(c) of the Act and Rule 38 of the said Rules which having not been done by the Registrar, he has failed to exercise his statutory powers in dealing with the proceeding before him and therefore, the impugned orders suffer from legal infirmity and cannot be sustained in law. The case was remanded to the Registrar for disposal in accordance with law and the Rule after setting aside the impugned orders. It is further found that the Registrar is guilty of misfeasance which should be deprecated.

 

Coca-Cola Company vs Registrar of Trade Marks and another 6 BLC 522.

552

Trade Marks Rules, 1963

Citation: 10 BLC 324, 7 BLC 148, 6 BLC 522

Case Year: 1963

Subject: Trade Marks Rules, 1963

Delivery Date: 2018-05-28

Trade Marks Rules, 1963

 

Rules 23 and 24

 

Admittedly, the rule 23 was not complied with in the instant case nor the Rule 24 read with section 70(c) of the Act. The mark of the opposite party No. 2 was registered in flagrant violation of the Rules 23 and 24 of the Rules of 1963 and section 70(c) of the Act of 1940.

 

Abdul Matin vs Registrar of Trade Marks and another 10 BLC 324.

 

Rule 77

 

It is crystal clear from the record that the opponent was allowed more than one month's time for hearing but hearing was avoided by him without any rhyme or reason till passing the impugned order by the Registrar of Trade Marks. The rejection of the opposition case as well as the application for adjournment do not come within the mischief of section 70 of the Trade Marks Act, 1940 or within the purview of the Rule 77 framed thereunder. The Registrar after dismissing the evidence adduced by the opponent in respect of the opposition case came to a finding that the respondent was using the Trade Mark 'Teen Teer' in respect of his Atta, Maida and Suji and further found that the opponent could not adduce any reliable evidence in support of his case and such findings are being findings of fact cannot be disturbed. The Registrar did not commit any illegality in rejecting the opposition case and allowing the application for registration of the Trade Marks of the respondent.

 

Mahboob Hossain (Md) vs Registrar of Trade Marks and another 7 BLC 148.

 

 

Rules 33 and 38

 

After the order dated 14-8-1993 passed by the Registrar rejecting the prayer for extension of time the Registrar ought to have fixed a date for hearing of the case giving the parties notice as envisaged under section 70(c) of the Act and Rule 38 of the said Rules which having not been done by the Registrar, he has failed to exercise his statutory powers in dealing with the proceeding before him and therefore, the impugned orders suffer from legal infirmity and cannot be sustained in law. The case was remanded to the Registrar for disposal in accordance with law and the Rule after setting aside the impugned orders. It is further found that the Registrar is guilty of misfeasance which should be deprecated.

 

Coca-Cola Company vs Registrar of Trade Marks and another 6 BLC 522.

553

Trade Marks Rules (Revised), 1963

Citation: 9 BLC 557

Case Year: 1963

Subject: Trade Marks Rules (Revised), 1963

Delivery Date: 2018-05-28

Trade Marks Rules (Revised), 1963

 

Rules 23 and 24

 

It is established beyond doubt that in granting registration of the mark of the opposite party No. 2 the application for the self-same mark filed earlier by the petitioner was not taken into consideration and no notice was served upon the petitioner. Therefore, it is apparent and obvious that the mark of the opposite party No. 2 has been registered illegally and without proper scrutiny. Hence the mark is liable to be expunged from the registry.

 

Abdul Matin vs Registrar, Trade Marks and another 9 BLC 557.

554

Trade Organisation Rules, 1994

Citation: 7 BLC 1

Case Year: 1994

Subject: Trade Organisation Rules, 1994

Delivery Date: 2018-05-28

Trade Organisation Rules, 1994

 

Rule 18(4)

 

The delay as alleged in making the reference to the Arbitration Tribunal cannot be said to be an inordinate delay prejudicing the interest of ;the petitioners. The reference contained the dispute of membership of 460 newly included members who were not liable to be included as such in terms of the relevant Rules and the Articles of Association in this connection. The dispute was not in fact the election dispute. There was therefore no warrant in law to refer J:he dispute to the Election AppealBoard under Rule 18(4) of the Trade Organisation Rules, 1994 as contended by the learned Advocate for the petitioners since the main dispute was with regard to the membership of the said 460 newly included members, which ultinately influenced the election result and hence the Arbitration Tribunal rightly set aside election result holding that the membership of the disputed members should not have been admitted by the Election Appeal Board when some of the members of the five-member inquiry committee clearly stated in the enquiry report that those disputed members were admitted as members of the Association in violation of Article 10 of the Articles of Association of the Association.

 

Bangladesh Electrical Association vs Bangladesh 7 BLC 1.

555

Trade Organisations Ordinance, 1961

Citation: 7 BLC 231, 8 BLC 521

Case Year: 1961

Subject: Trade Organisations Ordinance, 1961

Delivery Date: 2018-05-28

Trade Organisations Ordinance, 1961

[XLV of 1961]

 

Sections 3(2)(d) & 4A

 

Having regard to the facts disclosed by both the petitioner and respondent No. 4 to the effect that there had been no conflict of interest in functioning their association since 1972, the respondent No. 2 ought to have responded to the justice demand notice dated 12-8-94 issued on behalf of the petitioner and in not responding so, the respondent No. 2 has acted illegally and such non-action tantamounts to negligence of his duties. Accordingly, the respondent No. 2 is directed to dispose of the issue involved brought to his notice by the demand of justice notice dated 12-8-1994 as per section 4A read with section 3(2)(d) of the Trade Organisation Ordinance, 1961.

 

Bangladesh Inland Waterways (PC) Association vs Bangladesh, and others 7 BLC 231.

 

Sections 8, 8A, 9,10 and 11

 

Since the activities and general affairs of Baitul Mukarram Businessmen Group as a trade organisation are controlled, supervised and administered by the government, Baitul Mukarram Businessmen Group also must be taken to have been functioning as an instrumentality of the Director of Trade Organisations which is a local authority within the meaning of section 3(28) of the General Clauses Act and also as instrumentality of the government. Hence the act of holding the elections by the Baitul Mukarram Businessmen Group on 2-1-2003 and 18-1-2003 and the publication of their results could very well be said to be an act done in conection with the affairs of the Republic and the writ petition is therefore   maintainable.  

 

Bangladesh and others 8 BLC 521.

556

Trade Unions Act, 1965

Citation: 9 BLC (AD) 209

Case Year: 1965

Subject: Trade Unions Act, 1965

Delivery Date: 2018-05-28

Trade Unions Act, 1965

[XVI of 1965]

 

Section 30

 

The High Court Division referred to section 30 of the Trade Unions Act, 1965 which was a repealed law and the Registrar of Trade Unions has no authority to issue a certificate to a particular committee as a genuine committee declaring another committee to be a valid one.

 

Sultan Ahmed Talukder and another vs Registrar of Trade Unions and others 9 BLC (AD) 209.

557

Trading Corporation of Bangladesh Order, 1972

Citation: 9 BLC 463

Case Year: 1972

Subject: Trading Corporation of Bangladesh Order, 1972

Delivery Date: 2018-05-28

Trading Corporation of Bangladesh Order, 1972

 

 [po no. 68 of 1972]

 

Article 11

 

From the Memo dated 18-9-02 it shows that because of the decline of the functions of the TCB due to open market economy in the country, the government took a decision to retain 235 employees of the TCB, as such, a committee was formed under the Chairmanship of an Additional Secretary, Ministry of Commerce to identify the said 235 employees from among the employees of the TCB and the rest 306 employees would be released according to the decision of the Government, after the expiry of the month of September, 2002 and the respondent No. 2 was requested to implement the above decision of the government and accordingly, the decision of the government was implemented and the petitioners in all writ petition were released/discharged by the order dated 19-9-02. Under section 4 of the Public Servants (Retirement) Act, 1974 the petitioners have got a right of service with the TCB till they complete the age of 57 years and obviously, they lost their jobs because of the decision of the government and not of their employer, the TCB. The release of the petitioners in all the writ petitions are illegal, firstly because, their such release were nothing but their constructive dismissal and secondly, it was done not actually by the TCB but at the behest of the Government.

 

Abdul Halim Bhuiyan (Md) vs TCB and others 9 BLC 463.

 

558

Transfer of Immovable Property (Temporary Provisions) Order, 1972

Citation: 8 BLC 24

Case Year: 1972

Subject: Transfer of Immovable Property (Temporary Provisions) Order, 1972

Delivery Date: 2018-05-28

Transfer of Immovable Property (Temporary Provisions) Order, 1972

 [PO No. 142 of 1972]

 

Articles 4, 5 & 7

 

The deed in question was not presented for registration by the person as described in section 32 of the Registration Act. In order to get registration of a deed relating to immovable property the mandatory provisions of Articles 4 and 5 of the President's Order No. 142 of 1972 and section 32 of the Registration Act must be complied with. As the sale deed was not properly presented for registration before the District Registrar, he rightly refused to register the same.

 

Nargis Begum vs Ezaz Ahmed 8 BLC 24.

559

Transfer of Property Act, 1882

Citation: 8 BLC (AD) 121, 6 BLC 508, 8 BLC 30, 9 BLC (AD) 114, 10 BLC (AD) 76, 10 BLC 580, 8 BLC (AD) 27, 6 BLC 467, 6 BLC (AD) 38, 6 BLC 467, 8 BLC (AD) 20, 8 BLC (AD) 97, 8 BLC 37, 9 BLC 644, 6 BLC (AD) 115, 9 BLC 322, 6 BLC 467, 8 BLC 306, 6 BLC (AD) 85.

Case Year: 1882

Subject: Transfer of Property Act, 1882

Delivery Date: 2018-05-28

Transfer of Property Act, 1882

[IV of 1882]

 

Section 41

 

The ratio of judicial pronouncements is that for applicability of section 41 of the Act primarily two things must concur: (1) that the person, i.e. ostensible owner, who has no real title was clothed with the insignia of ownership with the consent, express or implied, of the real owner; and (2) that the person purchasing for value from the ostensible owner shall take reasonable care to -ascertain that his transferor has authority to make the transfer. At the time of making the purchase from Narayan Chakraborty plaintiffs were very much aware that their vendor's father was alive. The plaintiffs made their purchase without making reasonable inquiry to ascertain real ownership of the property transferrred by their vendor, nor did they take steps for ascertaining the correctness of the recital in the deeds in spite of being aware of the fact that real owner of the property was alive at the material time.

 

Rabeya Khatun & others vs Moniruddin and others 8 BLC (AD) 121.

 

Section 52

 

The pre-emption case was allowed on 27-6-1983 and the two deeds of re-conveyance were executed on 28-02-1983 and hence the trial Court has rightly found that the deed of re-conveyance is hit by doctrine of Us pendens under section 52 of the Transfer of Property Act.

 

Jahangir Alam vs Sailish Chandra and ors 6 BLC 508.

 

Section 52

 

In a pre-emption case when the case holding does not appear to be a mortgaged property or charged for mortgage sale, such holding, even, if sold in execution of any money decree in any money execution proceeding, any alienation by the judgment-debtor does not come within the purview of the doctrine of lis pendens in the absence of the proof of service of notice under Order XXI, rule 54 of the Code upon the alienor or the alienee as the case may be.

 

Badiul Alam being dead his heir Fazhd Karim vs Md Nurul Islam 8 BLC 30.

 

Section 52

 

The doctrine of lis pendens as in section 52 of the Transfer of Property Act is intended to maintain the status quo unaffected by the act of any party to the litigation pending its determination. If in spite of reconveyance to the original vendor subsequent to filing of the case seeking pre-emption, the pre­emption is allowed, then the principle of lis pendens also will be applicable in the pre­emption case.

 

Ambiya Khatun and others vs Noor Ahmed and others 9 BLC (AD) 114.

 

Section 52

 

The appellant Bazlur Rahman transferred the disputed land to appellant Bushra Complex Ltd when there was no civil suit pending and, as such, the High Court Division committed error of law in holding that the transfer took place during the pendency of suit and was hit by the doctrine of lis pendens.

 

 Bushra Complex Ltd and another vs   Syeda Sabera Khatun & others 10 BLC (AD) 76.

 

Section 52

 

It is well recognised that the effect of section 52 of Transfer of Property Act is not to 'wipe out a sale pendente lite altogether but to subordinate it to the rights based on the decree or the order passed in the proceeding. The pendente lite takes the property subject to the result of the suit or proceeding. It is to be noticed that the right under the decree or order is sought to be protected by the doctrine of Us pendens. But if the proceeding cannot yield any result creating any right in favour of a party to the proceeding, the question of applying the doctrine does not arise.

 

Rajdhani Unnayan Kartripakhya (RAJUK) and others vs Md Lutfar Rahman and ors 10 BLC 580.

 

Section 53A

 

On the promulgation of the President's Order No. 16 of 1972 the-property assumed the character of abandoned property and that as per provision of Article 10 of the President's Order No. 16 of 1972 the property vested in the government and that possession of the property in question though claimed by the respondent No. 1, but as was not established was with him on 28-2-1972 when PO No. 16 of 1972 came into force and that as no material has been brought on record whereupon it can be said that the possession claimed by the respondent No. 1 is of the kind of possession as contemplated by the provision of section 53A of theTransfer of Property Act, as such, possession of the respondent No. 1 of the property in question is not protected under section 53A of the Transfer of Property Act.

 

Government of Bangladesh vs KM Zaker Hossain and others 8 BLC (AD) 27.

 

Section 54

 

Trial Court approached erroneously the question of ownership of the suit property relying on some exhibits which never created title in defendant No. 4 company being absolutely oblivious of the mandatory provision of section 54 of the Transfer of Property Act and section 17(1)(B) of the Registration Act which rendered the impugned judgment and decree illegal as a whole.

 

Government of Bangladesh & others vs Paper Converting & Packaging Ltd & others 6 BLC 467.

 

Section 105

 

The period for which the suit was brought, namely, 1401-1402 BS has already expired and the plaintiff had no subsisting leasehold right in suit fishery at the material time. Moreso, defendants 1-6 cannot be made liable for any damage done to the plaintiff by a third party, namely, defendant No. 7. The lease period having expired the plaintiff cannot also get any declaration of title against anyone including the defendant No. 7.

 

Bangladesh vs Abdul Alim Sarkar 6 BLC (AD) 38.

 

Section 105

 

Learned trial Court failed to differentiate between an owner of an immovable property and a licensee on the basis of temporary use of the godown on the suit property and thereby, ignored and did not place any reliance on the Ext 'A' and 'C' which proves that the permission was given by the defendant No. 3 to the plaintiff to use the suit property for a very short period and the plaintiff is none but a mere licensee.

 

Government of Bangladesh & others vs Paper Converting Packaging Ltd & others 6 BLC 467.

 

Section 105 Without giving valid notice the lease-hold right cannot be cancelled—

 

The Housing Estate Authority allotted the plot in question to respondent No. 1 for 99 years upon receipt of instalment of consideration money and accordingly, possession was delivered. Admittedly, the notice asking the respondent No. 1 for paying the 4th instalment and that in case of non-starting of construction, the allotment in question would be cancelled without further communication was sent to the address where knowingly the lessee does not reside. It further appears that the writ-petitioner-respondent No. 1's allotment of the plot was cancelled on 11-8-94 and on the same day it was allotted to respondent-appellant in the absence of any application from her side seeking allotment In such circumstances, the cancellation of the lease and the allotment of the plot in question to the appellant were malafide and the action of the Housing Estate Authority is without lawful 'authority as it was done without giving any notice to the allottee.

 

Jahanara Ahmed vs Md Abdul Quyum and others 8 BLC (AD) 20.

 

Section 106

 

It cannot be said that bonafide requirement of the premises by the plaintiff is a mere desire/wish since she has established her bonafide requirement by reliable evidence. Exception taking which the defendant tried to disprove the claim of the plaintiff as regards her bonafide requirement could not be established by evidence. Second plea of the defendant that in commercial area residential house cannot be constructed also does not stand to scrutiny in the background of the type of construction now-a-days as is being made both for commercial as well as for residential purposes in the locality where commercial activities are already in existence. It has also been established by the evidence on record, both oral and documentary, that the tenancy in question was terminated in accordance with law.

 

Bulbul Begum vs Md Sanwar Belal and anr 8 BLC (AD) 97.

 

Section 106

 

Upon Perusal of the Ext. 4-kha, a copy of the notice under section 106 of the Transfer of Property Act dated 24-7-1993, learned SSC Judge came to his finding that the tenant-petitioner himself received the copy of the notice by signing his name on the copy of the said notice on 1-8-1993 and on comparison with the signature of the tenant-petitioner "with other documents on record, he reached to his decision that the signature of the tenant-petitioner appearing in Ext 4-kha tallies with that of other documents on record and such finding of fact being based on evidence on record cannot be disturbed by the High Court Division in its revisional jurisdiction.

 

Mohammad Islam vs Rahicha Khatoon 8 BLC 37.

 

Section 106

 

No possession having been given, no vested right was created and the lessee Abul Hashem Khan could not legally claim one month's, calendar notice under the provision of the lease agreement. The High Court Division, therefore, erred in holding that one month's calendar notice was required to be served upon Abul Hashem Khan before determining lease.

 

Bushra Complex Ltd and another vs Syeda Sabera Khatun WBLC (AD) 76.

 

 

Sections 106 and 111

 

In the present case defendant No. 1 admittedly stopped paying rent since October, 1998. Since then he did not take any step to pay rent. So, the defendant became a defaulter and ultimately he was evicted through process of the Court on 16-8-2003. The arrears of rent piled up to Taka 13,16,360 from 1-10-1998 to 31-8-1999 before he was evicted. The decree so passed cannot be said to be invalid. The notice for eviction dated 12-7-1998 and subsequent correspondence between the parties were sufficient in establishing the intention of the parties to vacate the suit premises. After the expiry of the period of the tenure on 30-5-1997 the lease was determined.

 

Weaver Bind Sweater International (Private) Ltd vs Md Abul Hashem Mia and ors 9 BLC 644.

 

Section 109—Attornment—

 

It is not necessary for the defendant to attorn to the plaintiff for establishing such relationship. Attornment by the tenant is not necessary to confer validity of the landlord's right under the subsisting tenancy. The tenancy continues and the default of the defendant in payment of rent makes her liable for eviction.

 

Selina Begum vs Azizun Nessa 6 BLC (AD) 115.

 

Sections 118 and 129

 

It appears that the appellate Court discarded the deed of exchange and the Heba-bil-ewaz executed in favour of the plaintiff by his father simply because those were not admitted into evidence in accordance with law but he arrived at such finding without considering that the executants of the said deeds never disputed the execution thereof rather the written statement and the evidence on record support such, execution and the said two documents were admitted into evidence in presence of the defendants without any objection.

 

Aminul Hoque (Md) vs Sanat Kumar Dhar and others 9 BLC 322.

 

Section 122

 

It is not disputed that Abdul Sattar got the suit property by transfer not from real owner namely, Sufia Begum but from Abdul Sattar to his son on the basis of oral gift confirmed by a declaration through a photostat copy of an affidavit sworn before a Notary Public which having not been corroborated by any witnesses and the same has not been attested with original or duplicate copy and the Notary Public attested the same merely collecting the execution of the affidavit from his memory cannot be said a declaration of oral gift has been proved as required by the Evidence Act.

 

Government of Bangladesh & others vs Paper Converting & Packaging Ltd & others 6 BLC 467.

 

Sections 122 & 123

 

It is evident from the recital of Exhibit 2 that the essential ingredients of the gift or heba appears to be a complete one and it does not disclose any ingredients of lawful contract which can be placed to enforce through the Court of law. Defendant Nos. 1 to 7 cannot be also asked to convey the suit land as they cannot claim ownership to the property which had already been gifted by their predecessor. Registration is not necessary for a valid gift under the Mohammadan Law. It is crystal clear that the deceased had executed purely a deed of gift having no scope of calling it a deed of agreement or 'Ekrarnama'.

 

Sajida Begum and others vs Abdul Kader and others 8 BLC 306.

 

Section 123

 

The consistent view of the apex courts of this Sub-Continent is that not only a gift under Mohammadan Law but also under the Transfer of Property Act, a gift must be coupled with acceptance and delivery of possession of the property. Mere registration of such deed of gift is not at all sufficient, something more has to be done for making a valid gift which is lacking in the present case.

 

Bangladesh, represented by the Secretary, Ministry of Housing and Public Works & another vs Anny Ansari 6 BLC (AD) 85.

560

Trust Act, 1882

Citation: 22 BLD (AD) 41,15 BLD (AD) 79, 17 BLD (HCD) 584.

Subject: Trust

Delivery Date: 1970-01-01

 

 

Trust Act, 1882

 

Sections—20, 20B, 20F

The Trust Act has provided for certain restrictions on the investment of trust money. The Societies Registration Act contains no limitation on investment to be made by a society. A society cannot be construed as a trust, and the provisions of the Trust Act have no manner of application in the functioning of a society. Therefore, the embargo in the Trust Act has no manner of application in the case of any society registered under the Societies Registration Act. (Per Mahmudul Amin Chowdhury, CJ)

BRAC v. Professor Mozaffar Ahmed and others, 22 BLD (AD) 41.

 

Section—74

It provides that whenever any vacancy or disqualification in respect of a trustee occurs and it is found impracticable to appoint a new trustee under section 73 of the Trusts Act, the beneficiary may apply to the .principal Civil Court of original jurisdiction for the appointment of a trustee or a new trustee.

The scope of section 74 of the Trusts Act is limited only to cases where the trust is an undisputed and executable one. In the instant case, the creation, existence, validity and executability of the trust itself is being disputed, the trial court was correct in holding that if the Miscellaneous Case under section 74 of the Trusts Act is proceeded with, conflicting decisions may arise leading to serious complications. The Miscellaneous case was rightly stayed till the disposal of the Partition Suit.

Khalid Hamidul Huq Vs. Mrs. Nafisa Chowdhury and others, 15 BLD (AD) 79.

 

Section—94

If the property is not found abandoned under the law, the possession of the Government is that of a trustee and transfer by the Government will be in violation of section 94 of the Trust Act.

The Chairman, Sena Petitioner Vs. Haji Sufi Fazal Ahmed, 17 BLD (HCD) 584.

Ref: 40 DLR(AD)122; 46 DLR(AD)192— Cited.

 

561

Uniform Customs and Practice for Documentary Credits

Citation: 8 BLC 391

Subject: Uniform Customs and Practice for Documentary Credits

Delivery Date: 2018-05-28

Uniform Customs and Practice for Documentary Credits

 

Articles 2, 3, 4 & 14

 

A conjoint reading and careful examination of Articles 2, 3, 4 and 14 of UCPDC bring to light that Banks are in no way concerned or bound by the selling contract of the parties even if reference of such contract is made in the credit and Banks in such credit operation deal in documents and not with the quality of goods shipped or deal with any other performance by seller to which the documents may be related and Bank which effects payment and incurs deferred payment is entitled to have reimbursement from issuing Bank.

 

National Credit and Commerce Bank Limited vs Prime Bank Limited and ors 8 BLC 391

562

Union Parishads (Election) Rules, 1983

Citation: 6 BLC 67, 7 BLC 399, 6 BLC (AD) 75

Case Year: 1983

Subject: Union Parishads (Election)

Delivery Date: 2018-05-29

Union Parishads (Election) Rules, 1983

 

Rule 49

 

In view of mandate of law enshrined in Rule 49 of the Rules of 1983 and also in the light given by the authorities inevitable conclusion is that the Election Tribunal was very much within the framework of the Rules and committed no illegality in declaring the election of the office of Chairman of No. 8 Sonapur Union Parishad void only on setting aside election of Bangladesh Government Primary Centre of ward No. 3 without disturbing the result of polling in other undisturbed centres.

 

Abul Kashem vs Golam Mustafa 6 BLC 67.

 

Rule 49

 

The Tribunals below have committed no error of law in declaring the petitioner as elected member of ward No. 7 of the No. 13 Mollar Char Union Parishad on recounting the ballot papers.

 

Osman Gani Mondal (Md ) vs Md Anisur Rahman and others 7 BLC 399.

 

Rule 52Corrupt practice—

 

The Election Tribunal rightly arrived at the finding that corrupt practice was resorted to by the as well as irregularities that were committed by the personnel who were in-charge of conducting the election of the office of Chairman of the Union Parishad materially affected the election of the said office which was affirmed by the Appellate Tribunal as well as by the High Court Division call for no interference.

 

Abul Kashem vs Golam Mustafa and others 6 BLC (AD) 75.

563

UNIVERSAL DECLARATION OF HUMAN RIGHTS

Citation: 21 BLD (AD) 69

Subject: UNIVERSAL DECLARATION OF HUMAN RIGHTS

Delivery Date: 1970-01-01

 

 

UNIVERSAL DECLARATION OF HUMAN RIGHTS

 

Article—13

True it is that the Universal Human Rights norms, whether given in the Universal Declaration or in the Covenants, are not directly enforceable in national courts. But if their provisions are incorporated in the domestic law, they are enforceable in national courts. The local laws, both constitutional and statutory, are not always in consonance with the norms contained in the international human rights instruments. The national courts should not, straightway ignore the international obligations, which a country undertakes, If the domestic laws are not clear enough or there is nothing therein, the national courts should draw upon the principles incorporated in the international instruments.

But in the cases where the domestic laws are clear and inconsistent with the international obligations of the state concerned, the national courts will be obliged to respect the national laws, but shall draw the attention of the law-.makers to such inconsistencies. (Per Bimalendu Bikash Roy Choudhury. J).

Hussain Muhammad Ershad Vs Bangladesh and others, 21 BLD (AD) 69.

Ref: Satwant Singh Vs. D. Ramarathnam, Assistant Passport Officer, New Delhi and ors, AIR(1967)(SC)1836, Province of Sind Vs. Public at Large, PLD 1988(SC)138; Government of Bangladesh Vs. Zeenat Hossain IBLD(AD)89; State Vs. M.M. Rahmatullah, 1 MLR(AD)P-448; —Cited.

 

564

Value Added Tax Act, 1991

Citation: 8 BLC (AD) 112, 9 BLC 443, 10 BLC 553, 8 BLC (AD) 59, 8 BLC (AD) 134, 10 BLC 553, 9 BLC 443, 9 BLC 110, 8 BLC 329, 9 BLC 443, 9 BLC 649, 9 BLC 207, 9 BLC 443, 9 BLC 492, 8 BLC 582

Case Year: 1991

Subject: Value Added Tax

Delivery Date: 2018-05-29

Value Added Tax Act, 1991

[XXII of 1991]

 

Sections 2, 3, 5(4), 9,15, 20, 31 & 73

 

BTTB as is required to pay the Government VAT for rendering services to its customers and that the said Board in its turn is authorised by law to shift the tax in the form of VAT on its subscribers and having had done so, in the case of petitioner it cannot be said, as contended by the petitioner, that inclusion of VAT in the bill that was sent to the petitioner by BTTB was unathorised and illegal.

 

ABM Bayezid vs BTTB and others 8 BLC (AD) 112.

 

Sections 2, 20, 21 and 22

 

For the purpose of realising VAT any officer can perform any or all duties for the public interest as prescribed under the Act.

 

Aromatic Cosmetics Ltd vs Commissioner, Customs, Excise and VAT Commissionerate andors 9 BLC 443.

 

Sections 6, 7(l)(2)(Ka) and 14

 

In view of the position of law as it stands today i.e. after introduction of section 30A in the Customs Act, no one can come before this Court and invoke either the doctrine of vested right or promissory estoppel in the event of an express provision as contained in the Act as there cannot be an estoppel against the law. Therefore, in view of the provisions as contained in the Act the High Court Division arrived at the conclusion that in the instant case the petitioners are liable to pay supplementary duty pursuant to the provisions of SRO No. 45 dated 14-2-2000 and also pursuant to the then provision of section 109 of the Customs Act. The provisions as contained in section 7(1), (2) and (3) of the VAT Act read with the then section 109 of the Customs Act which was in force at the relevant time, it appears that the duty which was prevalent on the date of submission of bill of entry for clearing in-bond goods for home consumption rate of duty is the rate which is prevalent on the date of submission of the bill of entry for ex bond.

 

KY Steel Mills Ltd vs Commissioner, Customs, Excise and VAT and others 10 BLC 553.

 

Sections 6(1) and 7(1)

 

Upon making amendment in section 7(1) of the VAT Act by section 7(3) of the Finance Act, 1999 the legislature keeping in view the matter of public interest has widened the list of goods including the goods imported by the writ petitioner for levying Supplementary Duty and thereupon has made the provision for levying Supplementary Duty upon giving effect to 3rd schedule substituted by section 7(17) of the Finance Act, 1999. Such widening of the list of goods liable to be charged with Supplementary Duty is legally sustainable piece of law being within the legislative power of the Parliament and that rate of Supplementary Duty to be levied has also been enacted by section 7(17) and that matter of giving effect to the said legislation has been given to NBR by section" 7(18) of the Finance Act, 1999 which is neither delegation of legislative power nor abdication of legislative power. It cannot be said that NBR by giving effect to the 3rd schedule so enacted has legislated itself, rather, the NBR has only discharged the duties which is required to be done under section 7(18) of the Finance Act, 1999. Making of provisions in a particular law authorising a particular body to give effect to the said law on a specified date is quite within the competency of the legislature. The other contention that amendment made in the Customs Act subsequent to the enactment of VAT Act, 1991 cannot be read in the VAT Act is also not well founded one since the principle of law is that where enactment is being made upon referring to a particular earlier law in general then the legislative intent was that to include all the subsequent amendments made from time to time in the general law on the subject adopted by general reference in the latter Act. In section 6(1) of the VAT Act, Customs Act has been enacted by reference and as such amendments, alterations, etc. in the earlier Act have become part of the latter Act and because of that settled principle of law provisions of Customs Act as it stands at the time same sought to be applied in VAT Act becomes applicable.

 

GM Abdus Sattar vs Ministry of Finance, People's Republic of Bangladesh, and others 8 BLC (AD) 59.

 

Section 7(1)

 

Since goods on which VAT and supplementary duty are to be levied have clearly been mentioned in the newly inserted 3rd schedule legislated by the Legislature. The Legislature has only left to NBR the matter of notifying the effective date of the newly inserted 3rd schedule of VAT Act and the same can in no way be said legislation by NBR. Such kind of legislation can in no way be considered abdication of the power by the Legislature to subordinate body to legislate as regard imposition of Tax. Duty and levies, etc vested with it, rather by such kind of legislation the Legislature only authorises the subordinate body to give effect to a particular legislation on an appropriate date ie when occasion arises for giving effect to the legislation previously made. In the VAT Act, 1991 by was of reference Customs Act, 1969 has been referred and, as such, provisions of Customs Act have legally been applied as the same stood at the material time ie at the time when supplementary duty was assessed on the goods imported by the petitioner.

 

Salim (Md) vs Commissioner of Customs and another 8 BLC (AD) 134.

 

Section 7(1)

 

The legislation has provided that in the public interest at any time the Parliament can place a goods in the third schedule of the Act of 1999 for the purpose of imposition and collection of supplementary duty and in the instant case all the three letters of credit were opened in 1999, as such, this amendment which has been brought about after the opening of the letters of credit in question need not advert to that part of section 7(1) of the Act as these Rules can be disposed of without adverting to that aspect of the law.

 

KY Steel Mills Ltd vs Commissioner, Customs, Excise and VAT and others 10 BLC 553.

 

Sections 20, 21 and 40

 

Reading section 40 together with sections 20, 21 and Rule 6 it will be clear that the Commissioner having dual power of confiscation and fine under his own capacity can exercise both, side by side he can also exercise either of the two. Thus the power of imposing fine only, upon exercising his own power as well as the powers of his subordinate i.e. the Divisional Officer, the Commissioner has not acted illegally. Under such circumstances the term "and" used in section 40 ('t) cst) is to be read disjunctively. Accordingly, the actions taken by the Commissioner in passing the impugned orders of adjudication is not beyond his jurisdiction, rather the same are passed within the purview of law and, as such, the impugned orders are found to have been passed in accordance with law.

 

Aromatic Cosmetics Ltd vs Commissioner, Customs, Excise and VAT Commissionerate and ors 9 BLC 443.

 

Section 26

 

The term "prior notice" appears in the proviso not in the main section. Upon going through the proviso it appears that the commissioner may, upon recording specifically in the record the reasons, authorise an officer not below the rank of superintendent, to inspect the goods, service, books of accounts, etc, of any business place of any assessee without prior notice and examine/audit the books of accounts. The said officer having such authority will furnish his report of such inspection to the commissioner with a copy to the assessee within 48 hours. So, the contention of Mr Huq as to prior notice was not issued or no report has been supplied or the authority belongs to the Divisional Officer, is of no basis so far section 26 is concerned. Although prior notice is not necessary for seizure of records but even then the respondents, as it appears, served an instantaneous notice through Annexure "E" pursuant to the noting, that is, Annexure-5, informing the petitioner about the authority given to inspect and seize.

 

Aromatic Cosmetics Ltd vs Commissioner, Customs, Excise and VAT Commissionerate and ors 9 BLC 443.

 

Sections 26 and 48

 

Respondent No. 2, Joint Director, Customs Intelligence and Investigation entered the offices and factory premises, searched and seized various documents at Barisal by forming a team in this regard. At the same time respondent No. 2 also authorised Al-haj Md Taibur Rahman, Superintendent, Customs, Excise & VAT Inspectorate to conduct the similar raid by entering the premises of the Head Office of the petitioners in Dhaka. In the present case, neither the respondents No. 1 and 2 nor said Al-haj Md Taibur Rahman were authorised under section 26 or section 48 to enter the premises for inspection search or seizure of books, documents and papers of the petitioners for the purpose mentioned therein.

 

Opsonin Chemical Industries Ltd & ors vs Customs Intelligence and Investigation & ors 9 BLC 110.

 

 

Section 42

 

The powers conferred upon the Appellate Tribunal pursuant to the provisions of section 196B(1) of the Customs Act are of widest aptitude and it can pass an ad interim order during the pendency of an appeal which is reasonably ancillary and incidental to the main appellate jurisdiction. The provisions of VAT Act read with the relevant provisions of Customs Act do not show that there is an express bar in making any interim order or by necessary implication.

 

Commissioner Customs, Excise & VAT vs Customs Excise & VAT Appellate Tribunal 8 BLC 329.

 

Section 42

 

The submission of Mr Huq that 'the petitioner had to avail writ jurisdiction as the adjudicating order was passed by the Commissioner who is also the appellate authority and the alternative remedy being saddled with inflexible pre­conditions the same cannot be availed' is not acceptable at all. Moreover, the provision of appeal under section 42 of the VAT Act and applicability of section 196 and section 194 of the Customs Act having been amended granting ample power to the appellate authority, non-availing the forum of appeal on the ground of inflexible pre-conditions or for the question of interpretation of statute will not ipso facto give the petitioner a right to avail the writ jurisdiction. Thus, it is found that having not availed the alternative adequate remedy of appeal the writ petitions are not maintainable.

 

Aromatic Cosmetics Ltd vs Commissioner, Customs, Excise and VAT Commissionerate and ors 9 BLC 443.

 

Sections 42(1) and 56(l)(ka)

 

In overall view of section 42 of the Act, it appears that the provision of appeal is a more efficacious and speedy remedy available to the petitioner and non-availing of that opportunity dis-entitled the petitioner to invoke the writ jurisdiction before the High Court Division.

 

Bengal Glass Works Ltd vs Member (VAT), National Board of Revenue (NBR) 9 BLC 649.

 

Section 42(1) (4)

 

The appellate Tribunal has to give any decision on the appeal within 6 months from the date of receipt of the appeal as per provisions of section 42(4) of the VAT Act which having not been done the appeal be deemed to have been allowed.

 

RM Oil Refinery Ltd vs Appellate Tribunal, Customs/ Excise and VAT and others 9 BLC 207.

 

Sections 48 and 51

 

Upon reading the language of section 48 it appears that the power to search has been provided therein by the Board or the Commissioner authorised by the Board, who may by written order authorise any Officer, not below the rank of Assistant Commissioner, to search any place, premises, vessel, etc. In the present cases the question is not only to search but also seizure. However Annexure "5" to the affidavit-in-opposition shows-that the written order, if any required, has been given. Upon reading section 51 it is clear that the same relates to search and arrest not relating to seizure. So, the contention of Mr Islam is found to be forceful and, as such, the above sections are not applicable in the present cases.

 

Aromatic Cosmetics Ltd vs Commissioner, Customs, Excise and VAT Commissionerate and ors 9 BLC 443.

 

Section 55

 

All the actions of the petitioner proves that the reasons for non­payment of VAT continuously for a long time was not bonafide mistake rather it proves that the petitioner was trying to evade payment of VAT on different pretexts which appears to be intentional, not due to bonafide mistake. Such continuous actions prove that the petitioner intentionally tried to deceive the government from collecting revenue by practicing fraud. It is the settled principle of law that action against fraud has no limitation. So, the bar under section 55 will not be applicable in this case.

 

Aromatic Cosmetics Ltd vs Commissioner, Customs, Excise and VAT Commissionerate and ors 9 BLC 443.

 

Section 56

 

Since it is prima facie established that the petitioner company has made payment of entire duties and other charges to their appointed agent, who in collusion with the customs officials and others defrauded the Government it would cause undue economic hardship to the petitioner if they are to pay statutory deposit along with the appeal. During the pendency of the appeal before the Tribunal the respondent 1 has issued the impugned order suspending the commercial operation of the petitioner company under section 202(1) of the Customs Act read with section 56 of the VAT Act, 1991.

 

Lilac (Private) Ltd vs Commissioner of Customs and others 9 BLC 492.

 

Rule 6

 

For the purpose of realising VAT any officer can perform any or all duties for the public interest as prescribed under the Act. Aromatic Cosmetics Ltd vs Commissioner, Customs, Excise and VAT Commissionerate and ors 9 BLC 443.

 

Rule 6

 

Reading section 40 together with sections 20, 21 and Rule 6 it will be clear that the Commissioner having dual power of confiscation and fine under his own capacity can exercise both, side by side he can also exercise either of the two. Thus the power of imposing fine only, upon exercising his own power as well as the powers of his subordinate i.e. the Divisional Officer, the Commissioner has not acted illegally. Under such circumstances the term "and" used in section 40  is to be read disjunctively. Accordingly, the actions taken by the Commissioner in passing the impugned orders of adjudication is not beyond his jurisdiction, rather the same are passed within the purview of law and, as such, the impugned orders are found to have been passed in accordance with law.

 

Aromatic Cosmetics Ltd vs Commissioner, Customs, Excise and VAT Commissionerate 9 BLC 443.

 

Rule 7

 

Rule 7 read with its proviso does not empower the Commissioner of VAT to authorise his subordinate officers to carry out inspection or search of loaded vehicles with goods by setting up any checkpost at a fixed place on the road or highway but it is intended to be carried out by way of mobile checking at any place within the jurisdiction of the VAT Authority so that no untoward situation is created in the process including traffic jam.

 

Ctg Steel Re-rolling Mills Associa tion vs Commissioner of Customs & ors 8 BLC 582.

565

Voluntary Social Welfare Agencies (Registration and Control) Ordinance, 1961

Citation: 4, MLR (1999) (AD) 350

Case Year: 1961

Subject: Voluntary Social Welfare Agencies (Registration and Control)

Delivery Date: 2018-04-25

Voluntary Social Welfare

Agencies (Registration and Control) Ordinance, 1961

(Ord. XLVI of 1961)

 

Section 9(1) Dissolution of Executive Committee— Locus stand! of founder Member in a suit—

 

Bangladesh Association for Voluntary Sterilization (BAVS) has its constitution and Bye laws under which its National Executive Committee is empowered to protect the interests of the organisation in suits. A founder member of the Association when not authorised by the National Executive Committee to do so has no locus standi to bring suit against the dissolution of the Executive Committee.

 

Deluar Hossain (Md). Vs. Joint Secretary Ministry of Health and Family Welfare and others. 4, MLR (1999) (AD) 350.

566

Waqf Ordinance, 1962

Citation: 10 BLC 114, 6 BLC 427, 10 BLC (AD) 118, 7 BLC (AD) 99, 8 BLC 594, 9 BLC (AD) 64, 10 BLC (AD) 118, 10 BLC 720, 10 BLC (AD) 88, 10 BLC (AD) 171, 10 BLC (AD) 171,

Case Year: 1962

Subject: Waqf

Delivery Date: 2018-05-29

Waqf Ordinance, 1962

[I of 1962]

 

Section 2(8)

 

Since the opposite party No. 1 being not covered by section 2(8) of Waqf Ordinance his eviction from the Waqf property is found to be justified and legal. Even the person falls under the category of section 2(8) of the Waqf Ordinance can be evicted by the Deputy Commissioner if he considers that he creates disturbance or obstruction in the peaceful management of the Waqf property.

 

Ishfaqul Fattah vs Md Sujat AH and others 10 BLC 114.

 

Section 32(1)

 

It was incumbent upon respondent 1, the Waqf Administrator to remove respondent 2 from the office of Mutawalli as soon as it was found that Mutawalli mismanaged the affairs of Waqf Estate and violated the terms of the Waqf deed. Respondent 2 failed to fill up the vacancies of Executors and he ran the affairs of the Waqf Estate alone arbitrarily violating the pious wishes of the Waqif and the provision of section 32(1) of the Waqf Ordinance, 1962 is very much attracted in the instant case and the Mutawalli is liable to be removed.

 

Yeasin Ali Pramanik vs Waqf Administrator Dhaka and ors 6 BLC 427.

 

Section 32(1)

 

When a Mutwalli is removed under section 32(1) of the Waqf Ordinance he can file a suit or he can file a writ petition but once he filed a suit challenging such order and obtained a decree of rejection of plaint he cannot file writ petition keeping the order of rejection alive.

 

Abdul Jabbar Mondal (Md) vs Administrator of Waqfs 10 BLC (AD) 118.

 

Section 34(5)

 

The Wakf Adminis­trator being empowered by section 34(5) of the Wakf Ordinance, 1962 amended the bye-laws for better management and administration of the wakf estate and hence his order of changing the scheme and approval of the new committee for the same is also legal and within his legal authority.

 

Afsar Uddin Sarker vs Md Aftabuddin 7 BLC (AD) 99.

 

Sections 35 and 50

 

The petition under section 35(1) of the Waqf Ordinance, filed before the learned District Judge, empowers the learned District Judge to declare that the property is not a Waqf property or that the property is Waqf property within the limit stated in the petition. The property could not be a Waqf property as decided in the civil suit and affirmed upto the Appellate Division and it may be declared that the suit property is not a Waqf property. The Waqf Administrator is not required to decide the question as directed by the learned District Judge.

 

YusufSarder(Md) Waqf Estate vs Md HussainKhan 8 BLC 594.

 

Sections 35(1) and 50

 

It appears that the waqf in respect of the suit land has been found to be void and decreeing the suit declaring the title of the respondent in the suit land and for recovery of possession in respect of the suit land, there is no illegality in the impugned judgment calling for interference.

 

Yusuf Sarder (Md) Waqf Lillah Estate vs Md Hossain Khan 9 BLC (AD) 64.

 

Section 44

 

In order for proper management of the Waqf Estate the Administrator, under section 44 of the Waqf Ordinance, is empowered to appoint a Mutwalli or form a committee when the contesting parties failed to submit the list of the committee, the formation of the committee, by the Administrator of Waqfs is legal.

 

Abdul Jabbar Mondal (Md) vs Administrator of Waqfs 10 BLC (AD) 118.

 

Section 50

 

In creating a waqf no formal deed is necessary but if a deed is executed, then the executant is required to prove such deed which the plaintiff has failed. The burden of proving that the property is a waqf property lies heavily upon the plaintiff and no weakness in the defence would help him out. The plaintiff being dead, he was substituted by his legal representatives. When plaintiff failed to prove that the property was a waqf property and he was the Mutawalli, continuance of the appeal at the instance of the legal representatives would be of no avail.

 

Choudhury Sahabuddin Ahmed and others vs Government of Bangladesh and others 10 BLC 720.

 

Section 57

 

Since the order granting sanction to the mutawalli for the transfer of the waqf property was not made in accordance with the provision of the Waqf Ordinance such order is not an order in the eye of law and the purchaser did not aquire any title in the property of the waqf.

 

Shahadat Hossain (Md) vs Hafizuddin Ahmed and others 10 BLC (AD) 88.

 

Section 64(1)

 

Since the appellants are neither strangers nor trespassers as regard the waqf property, rather being the tenants of the Waqf Estate and the said tenancy having not been terminated the order of the Administrator of Waqfs for eviction of the appellants as per provision of section 64(1) of the Ordinance cannot be considered as legal, rather the said order is a misconceived one.

 

Yousuf (Md) & others vs Administrator of Waqfs Government of Bangladesh, and others 10 BLC (AD) 171.

 

Section 64(1)

 

The waqf property certainly not being the land of the Government or the construction standing in such property being not of the category of the structure as contemplated by the provision of the Ordinance No. XXIV of 1970 and moreover, the Waqf Estate not being a local authority initiation of the Miscellaneous Case under the provision of the Ordinance No. XXIV of 1970 by the Deputy Commissioner and making order of eviction of the appellants were not legal.

 

Yousuf (Md) & others vs Administrator of Waqfs Government of Bangladesh, and others 10 BLC (AD) 171.

 

Section 64(1)

 

Section 64(1) of the Ordinance has never been intended to deal with the monthly ejectable tenants of the Waqf Estate. Suffice it to say the provision of section 64(1) of the Waqf Ordinance is applicable in respect of the persons as mentioned in the said section in the background of the facts and situations as have been stipulated therein and not in respect of the monthly ejectable tenant of the Waqf Estate. As such, the order of the Waqf Administrator passed under section 64(1) of the Ordinance for eviction of the appellants, who are the monthly ejectable tenants of the Waqf Estate, was not a legally well conceived one.

 

Yousuf (Md) & others vs Administrator of Waqfs Government of Bangladesh, and others 10 BLC (AD) 171.

567

WASA Employees Service Rules, 1990

Citation: 7 BLC (AD) 4

Case Year: 1990

Subject: WASA Employees Service

Delivery Date: 2018-05-29

WASA Employees Service Rules, 1990

 

Rule 46(1) (2)

 

Plaintiff was put under suspension  with  effect from 20-9-1990 under Rule 46(1) of the WASA Employees Service Rules of 1990 and that under Rule 46(2) of the Rules of 1990 the WASA was required to serve a copy of the charge sheet upon the plaintiff within 30 days i.e. 19-10-1990 from the order of suspension which having not been done, the order of suspension stood cancelled from that date under Rule 46(2) and that the plaintiff having been reinstated to his post on 5-11-1990, the second order of suspension issued on 5-11-1990 was illegal and without jurisdiction and that one of the members of the enquiry committee was junior to plaintiff, who had strained relationship with him and that the officer, who was in charge of the godown, was exonerated ignoring his admission as has been rightly found by the trial Court.

 

Dhaka Water Supply and Sewerage Authority and ors vs Matiar Rahman 7 BLC (AD) 4.

568

Wealth Tax Act, 1963

Citation: 7 BLC 142

Case Year: 1963

Subject: Wealth Tax

Delivery Date: 2018-05-29

Wealth Tax Act, 1963

[XV of 1963]

 

Sections 7 and 27

 

In the instant case, the applicant disclosed the yearly rental of the house at Taka 6,60,000 in his income tax return as bonafide annual rental and the assessing officer adopted that value and multiplied the sum by twelve times for the purpose of assessment of wealth tax which is not permitted under Rule 8(3) of the Wealth Tax Rules, 1963 and the proviso thereof. Accordingly, the matter is referred back to the Taxes Appellate Tribunal for determining the value in accordance with law.

 

AR Yusuf vs Commissioner of Taxes 7 BLC 142.

569

Wealth Tax Rules, 1953

Citation: 7 BLC 142

Case Year: 1953

Subject: Wealth Tax

Delivery Date: 2018-05-29

Wealth Tax Rules, 1953

 

Rule 8(3)

 

In the instant case, the applicant disclosed the yearly rental of the house at Taka 6,60,000 in his income tax return as bonafide annual rental and the assessing officer adopted that value and multiplied the sum by twelve times for the purpose of assessment of wealth tax which is not permitted under Rule 8(3) of the Wealth Tax Rules, 1963 and the proviso thereof. Accordingly, the matter is referred back to the Taxes Appellate Tribunal for determining the value in accordance with law.

 

AR Yusuf vs Commissioner of Taxes 7 BLC 142.

570

Wireless and Telegraphy Act, 1933

Citation: 7 BLC 77

Case Year: 1933

Subject: Wireless and Telegraphy

Delivery Date: 2018-05-29

Wireless and Telegraphy Act, 1933

[XVII of 1933]

 

Section 3

 

The ETV has been enjoying the privilege of terrestrially broadcasting its programmes by using the only other terrestrial channel of BTV without the required licence under the Wireless Telegraphy Act, 1933 and, above all, on the strength of a fraudulent licence transferred to it by Mr AS Mahmud, who never participated in the tender and even if for argument's sake it is assumed that the licence obtained by Mr AS Mahmood is good, it cannot give legitimacy to the ETV whose offer was rejected as being non-responsive and respondent No. 6 (The ETV Ltd.) is thus restrained from terrestrial broadcasting its programme only.

 

Dr Chowdhury Mahmood Hasan vs Government of Bangladesh 7 BLC 77.

571

Words and Phrases

Citation: 10 BLC (AD) 198, 10 BLC (AD) 96, 10 BLC 63, 10 BLC 443, 6 BLC 629, 6 BLC 681, 9 BLC 271, 10 BLC 230, 8 BLC (AD) 170, 10 BLC 397, 10 BLC (AD) 1, 10 BLC 170, 10 BLC 524, 8 BLC 694, 8 BLC 155, 10 BLC 765

Subject: Words and Phrases

Delivery Date: 2018-05-29

Words and Phrases

 

Abandoned

 

Abandoned in its ordinary meaning comments means a situation when the control, management and possession is given up by the owner. The person in Article 2 is identified other than a citizen of Bangladesh, many of the owners who collaborated with the occupation Pakistan army or owed allegiance to Pakistan, either left Bangladesh or went into hiding, abandoning their properties without making any arrangement to control, administer and manage the property whereby the concern went out of management and stopped production causing loss to national economy at that critical juncture of the national life soon after a bloody war of liberation with the occupation Pakistan Forces, and in order to boost up the national economy the government promulgated Acting President's Order No.l of 1972 for taking over those industries or commercial concerns, the owners of which either left or whose whereabouts were not known or not available to control, manage or administer in the public interest.

 

Sena Kalyan Sangstha vs Haji Sufi Fazal Ahmed and ors 10 BLC (AD) 198.

 

Appointment of Surveyor for Inspection

 

It appears that on an application at the instance of the plaintiff-decree-holder for appointment of an experienced surveyor having the knowledge of handling the containers, the same was allowed asking the decree- holder to deposit Taka 5000 immediately. The High Court Division on consideration of the application of the petitioner observed that it did not show at all why the petitioner is likely to be affected by any such order of the Court in appointing a surveyor for inspection of the condition of the containers in question and found that no injustice would be caused to the petitioner due to the impugned order.

 

Shaft Motors Ltd vs HRC Shipping Ltd and other 10 BLC (AD) 96.

 

Benami transaction of movable property

 

As the husband it was natural for- him to manage business of the lorry. While taking possession of the lorry, he got custody of all papers and thus such custody of the papers and possession of the lorry do not in any way prove purchase' of the lorry in the 'Benami' of wife.

 

Momtaz Begum vsMd Abdul Wahab Mea 10 BLC 63.

 

Benami Transaction

 

By the deed dated 20-12-74 the plaintiff No. 1 purchased 2 and a half decimal of land in the name of defendant No. 2 as benami inasmuch as the Matriculation Certificate of defendant No. 2 shows that he was born on 2-4-1959 for which when the deed in question was registered he was a boy of 13 years and in the absence of his independent source of income it can be said the deed in question was a benami.

 

AKM Shahidul Haque vs Md Abu Taher and others 10 BLC 443.

 

Kabuliat and Rent Receipt

 

Since both the Courts have found that the plaintiffs have proved his settlement in respect of 2 decimals of land on the basis of kabuliyat, MRR Khatian and other documents but the Courts below have rightly disbelieved the plainfiffs1 case of settlement of another 4 decimals of land on the basis of rent receipts and they have rightly found that the rent receipts are fraudulent, collusive papers created for the purpose of the suit and there is nothing to interfere there with

 

Ana Miah Bepari and anr vs Safura Khatun and ors 6 BLC 629.

 

Legitimate expectation

 

The words "legitimate expectation" was first coined by Lord Denning in the case of Schmidt vs Secretary of State for Home Affairs, (1969) 2 Ch 149. But this phrase was limited at that time, first of all to a legal right which was contravened. Changed view is that where expectations were not legally enforceable but had some reasonable basis, were treated as legitimate expectations. But it has by now established as a principle of law. This principle in essence imposes a duty to act fairly and requires of the concerned authorities to act reasonably in dealing with the rights and interest of the people in the given circumstances. If the situation so demands, the Court shall certainly strike down such orders in exercise of its powers of judicial review of executive actions. In case of their unreasonableness or inertness or even laches on their part for which some benefit is lost causing prejudice to the people at large or even to an individual, the court may also direct the concerned authorities to exercise their functions fairly, reasonably and in accordance with law.

 

Bangladesh Soya-Protein Project Ltd vs Secretary, Ministry of Disaster Management and Relief, Bangladesh & others 6 BLC 681.

 

Misconduct

 

The word "misconduct" means conduct amounting to moral turpitude, breach and neglect of duty, failure to perform essential duties, mishandling of arbitration proceeding causing displacement of rules of justice and lack of integrity and impartiality.

 

A Latif and Company Limited vs Project Director, PL-480, Title 3, LGED & another 9 BLC 271.

 

Misconduct

 

The word "Misconduct" means mishandling of Arbitration proceeding causing displacement of Rules of Justice and lack of integrity and impartiality, any neglect of duty on the part of the Arbitrator which is likely to lead to a substantial miscarriage of justice.

 

Chittagong Steel Mills Ltd and another vs MEC Dhaka and others 10 BLC 230.

 

Mohammedan Law—Vassyatnama—

 

The High Court Division found that the courts below upon assessment of the relevant evidence came to the conclusion that vassyatnama, a valid piece of document, having been proved by evidence and the saham of the plaintiffs claimed in the plaint was reduced in the 'Ka' and 'Kha' schedules according to the disposition made on the basis of Vassyatnama. Since all the legal heirs of Ajim Mondal exercised their right of ownership on the basis of a vassyatnama and they had been in possession it was held that the courts below correctly drew inference that the consent was signified by all the legal heirs including Sohagi by their conduct. In that view the High Court Division saw no wrong with the decree passed by the learned Additional District Judge reducing the saham'of the plaintiffs and therefore the decree passed by the Additional District Judge had not occasioned any failure of justice.

 

Basoruddin Mondal & others vs Mohar All and others 8 BLC (AD) 170.

 

Nadabi Patra

 

It appears that though on the head line of the unregistered deed it was mentioned as Nadabi deed but the contents of the said deed clearly shows that it was a deed of exchange and on the basis of said exchange deed plaintiffs predecessor Shahani Bibi acquired 30 Ajutangsha land of the suit plot No. 7612. The defendants never claimed any land of plot No. 7612 either in their written statement or by oral evidence.

 

Bibi and others vs Md Mahbub and others 10 BLC 397.

 

Partition suit

 

The land in suit has already been amicably partitioned amongst the co-sharers and specific share of the respective co-sharer has been recorded in different SA plots and separate municipal holdings have been opened in the name of co-sharers and as such the suit for partition was not maintainable.

 

Halima Kha tun vs Hamid Miah 10 BLC (AD) 1.

 

Partition Suit

 

When a suit is based on joint ownership and enjoyment, a co-sharer in possession is always entitled, to seek partition simpliciter without seeking any declaration of his title. In deciding such suit, questions of title and nature of particular transaction may come up for decision, incidentally and need to be decided as incidental to adjudication of the shares of the co-owners.

 

Birendm Nath Mondal and others vs Raghupada Mondal 10 BLC 170.

 

Per incuriam

 

It appears that the decisions reported in 53 DLR 488 is a decision per incuriam, that is, not a binding decision as being in ignorance of law. However, the constitutional provision was rightly noticed by the other Division Bench in the case of Bikram Kishore (6 BLC) but it appears that their Lordships also fell into an error in observing that the Regulation No.l of 1900 is still a valid law and it appears from a reading of that decision that they arrived at that conclusion because of Act 16 of 1989 wherein it has been stated that the Regulation No.l of 1900 will be repealed with the promulgation of Act 16 of 1989 which shows that our legislature also laboured under misconception of law.

 

Rangamati Food Products Ltd vs Commissioner of Customs 10 BLC 524.

 

Restitution

 

The word restitution means restoration of anything to a person from which it was taken away earlier, return of something of which one has been deprived, act of making good for loss,

damage and  injury.  

 

Waliullah vs  Hasina Begum & ors 8 BLC 694.

 

Reasons provide foundation of conclusion

 

Reason is the soul of law (Cessate Ratione Legis Cessat IP Salex). Reasons presuppose logic. Reasons are links between the materials on which certain conclusions are based and the actual conclusion. Recording of reason is the only safeguard against possible injustice and arbitrariness. The summary manner in which learned Subordinate Judge disposed of the Miscellaneous Appeal without providing foundation of conclusion is highly disapproved.

 

Haripada Mandal vs Bidhan Chandra Mondal 8 BLC 155.

 

Reduction of the amount to be paid by way of security

 

Having regard to the circumstances and the submissions of the learned Advocates for the respective parties it is just and proper that the amount of security to be furnished by the defendants for release of the vessel from arrest be substantially reduced. However, it is indicated that a joint survey of the under water stern areas having not been conducted as yet, a sum of Taka 3,50,00,000 would in all probability meet the cost of repair and satisfy the claim of the plaintiffs.

 

HRC Shipping Ltd vs MV Marissa Green 10 BLC 765.